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Domestic Investigations and Operations Guide, FBI, 2008

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, . ALL INFOIUIATION CONTAn~D,
HEREIN IS UNCLASSIFIED
DATE 07-06-2009 BY UC 60322 LP/STP/SZ
UNC~ASSIF'IED

FO;R OFFICIAL USE ONLY

Domestic Investigatiol1s a.nd Operations Guide

FederaIBu<re~u of Investigation '(FBI)

Decem.ber16,2008

.This.is a privileged document that cannot be released in whole or in part to persons or agencies outside the Federal
~ureau ofInv~stigation, nor can it be republished in whole or in part in any \'{ritten form not·containing this
statement, including general use pamph)et~, without the approval ofthe Director of the federal Bureau of
Investigation.

UNCLASSIFIED
FOR OFFICIAL USE ONLY

c',

UNCLASSIFIED - FOR OFFICIAL USE ONLY
Domestic Investigations and Operations Guide
GENERAL INFORMATION: Questions or comments pertaining to the DIOG can be
directed to:
The Deputy Director's Office
or
FBIHQ, Director's Office, Resource Planning Office (RPO), Division_[OO]
Corporate Policy Office (CPO)
Division Point of Contact:

I

bE>
b 7C

(NOTE: Documentis a new publication; no previous DIOG versions are available)

PRIVILEGED INFORMATION:
Any use of this document, iJ.lcludingdirect quotes or identifiable paraphrasing,will be
marked with ,the following statement: This is a privileged document that cannot be released in whole or in part to persons or agencies
outside the Federal Burea,u of Investigation, nor can it be republished in whole or in part in any
written form not containing this statement, including general use pamphlets, without the approval
of the Director of the Federal Bureau ofInvestigation.

FOR OFFICIAL FBIINTERNAL USE ONLY-DO NOT I;>ISSEM~NATE
FOR OFFICIAL USE ONLY

ii
UNCLASSIFIED-FOR OFFICIAL USE ONLY

UNC~ASSIFIED - FOR OFFICIAL US~ ONLY
Domestic Investigations and Operations Guide

Table of Contents
(U) Preamble
1.

(U) Scope. and .Purpose.. ~."'

1. L
1,.2.
2.

2.2.
2.3.
2.4.
2.5.
2.6.
2.7'.
2.8.
2.9;

2.io.

1

·

(U) Scope
(U) 'Purpose

:

(U) General' Authorities and.Principles

2.1.

3.

:.•....• ~...........•...................•...•.........•.......•........................................ xi
1
1
~

~

2

(U) Scope of the Attorney General's Guidelines for Domestic FBI Operations
2
(U) General FBI Authorities under AGG-Dom
.3
(U) FBI as an Intelligence Agency
.3
(U) FBI Lead Investigative Authorities
;
,
.4
,
10
(U) Status as Internal Guidance
(U) Departures from the AGG-Dom
10
(U) Departures from the DIOG
:
,
11
(U) Other FBI Activities Not Limited by AGG~Dom
11
'(D) Use of <:;las.sifie~JJ!v~stiga~iveTech!1ologie~" ,"',.."." '-.,." ,.,..,
,,,, ,, ,.. 1~
(U) Application of AGG-Dom and DIOG
;
12

(U) Core Values, Roles, and Responsibilities

·

3.1.
3.2.
3.3.

;.. 13

(U) The FBI's Core Values
:
~
(U) Deputy Director Roles and Responsibilities
(U) Special Agent/hitelligence AnalystJTask Force Officer/FBI Contractor/Others
Roles' and Responsibilities
.3A. (D) Supervisor Roles ~nd Responsibilities
3.5. (U) Chief Division Counsel Roles and R~sponsibilities
,
3.6. (U)'Office of the General Counsel Roles and Responsibilities
:
3.7.
(D) Corporate.policy Office Roles and Responsibilities
;
~
3.8. (U) Office of Integrity and Compliance Roles anq Responsibilities
3.9.
(U) Operational Program Manager Roles arid Responsibilities..,
3.10. (D) Division Comeliance Officer Roles and Respo~sibilities
,
3.11. (U) FBI Headquarters Approval Levels

4.

(D) Privacy and Civil Liberties t and Least Intrusive Methods
4.1-.
4-.2.
4.3.
4.4.

5.

(U) Civil Liberties and Privacy
(U) Protection of First Amendment Rights
(U) Equal Protection under the Law , ,
.(U) Least Intrusive Ml'<thod.~ ;

(U) .l\.ssessments

5.1,
5.2,
5.3.
5.4.
5.5.
5.6.

~

13 .
1·4
14
15
18
18
19
19
.l9
20
20

2i
:

,

:
~

:

21
24
:..30
34
39

(U) Overview
,
;
39
(U) Purpose and Scope
·
40
.(U) Civil Liberties and Prlvacy
43·
(U) Authorized Purposes (AGG-Dam, Part ILA.2.-Authorized Activities)
,44
(UI/FOUO) Standards for Initiating· or Approving an Assessment
,
45
(U)Duration, Approval, Notice, Documentation, File Review and Responsible Entity45

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Domestic Investig~tions and Operations Guide
(0) Sensitive Investigative Matter I A~ademic Nexus I Buckley Amendment .....•.......57
(UIIFOUO) Standards tor Initiating or Approving the Use oran Authorized,
Investigative Method
58
5.9.
(U) Authorized,lnvestigative Methods-in Assessments and Pr~dicated .Investigations.58
7I
5.10. (0) Investigative Methods Not Authorized During Assessments
5.11. (U/~OUO) F~I National Collection ~equirements
72
5.12. (Ul/FOUO) FBI Field Office Collection Requiremellts ;
73
:
73
5.13. (U) Retention and, Dissemination,of Privacy Act Records
5.14. (0) Assessment file Records.Management and Retentio~
:..74

5.7.
5.8.

6. (U) Prel~minl;lry Investigations
.. 6.1.. (U) Overview

:
,

76·
,

,

76
76
,..;..76
77
,..78
78
78·

·
:
(U) Purpose and.Scope
(LJ) Civil Liberties a,nd Privacy
;
(U) Legal Authority
6.5.
(U) Predication
6.6.
(UlIFOUO) Stand~rds for Initiating or Approving a Preiiminary Investigation
(j,7.
(V) Duration, Approval, Notic~, Documentation and Fiie Review
, ,
6.~. . (UlIEOVO) Standards for Initiating or Approving the Vs~ oran Authorized
.
. ·1 nvestigative Method
:
:.: ,
:, :
: .6.9.
(ll) Authorized Investigative Methods in Preliminary Investigations
6.l0. (D) Sensitive Investigative Matter I Academic Nexus I Buckley Amendment .,
6.11. (V) Program Specific Jnvestigative Requirements
,

6.2.
6.3.
6.4.

7.- (U) Full Investigations .,

,

,

(V) Overview
;
(U) Purpose an~ Scope
;,
,
: ;
(V) Civil Liberties and Privacy
,
(V) Legal Authority
,
:
(D) PrediCation
;
,
;
(DIIFOUO) Stand.aids for Initiating or Approvi.ng a'FuJi Investigation
(V) Duration, Approval, Notice, Documentation and Fil~ Review
.(VIIFOUO) Standards for Initiating or Approving the Vse of an Authorized
Investigative' Method
7,9.
(U) Authorized Investigative Methods in Full Investigations
7.1 O. (U) Sensitive InvestigatlveJMatterl Academic Nexlls lBuckley Amendment
7.11. (D) Pro~ram SpecificInyestigative Requirements
(U) Enterpris~ Inve.!!tigations

8.1.
8.2.
8.3.
8.4.
8.5.
8.6.

,

9.1.

,

(U)·Ov.erview

83

84

~

,..,

85
85
85
86
87
88
: 88
90
90
92
93

: : 94

(D) Overview
,
:
, :
, :
(U) Purpose, Scope and Definitions
(U) Civil Liberties an~ Privacy : ,
(U) Legal Authority
,
.(U) Predication
, ~
,
(U) Duration, Approval, Notice, Documeritationand File Review

9.. (U) Foreign Intelligence;

81

85

7.1.
7.2.
7.3.
7.4.
7.5..
7.6.
7.7.
" 7.8.

8.

80

;
,

94
94
94
95
95
96

:

98

,

98

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Domestic Investigations and Operations Guide
9.2.
9.3.
. 9.4.
9.5.

(U) Purpose and Scope
,
99
(D) Civil Liberties and Privacy
99
(U) Legal Authority
100
. (UlIFODO) Duration, Approval, Notice, Documentation, File Review and FBIHQ
Standards for Approving the Initiation of Positive Foreign InteiligenceInvestigationsl0l
9.6.
(UlIFOVO).Standards for Initiating or Approving the Dse of an Authorized
Investigative Method
i
:
:
102
9.7.
(D) Authorized Investigative Methods in Foreign Intelligence Assessments:and
Predicated Investigations
102
9.8.
(DIIFODO) Investigative Methods Not Authorized During Foreign Intelligence
Investigations
,
104
9.9.
(V) Sensitive Investigative Matter
104
9.10. (V) Approval and Notification
·
105,
9.11. (D) Retention of Information ,
107

10. '(D) Sensitive Investigl;ltive Matter I Academic Nexus
10.1. (D) Overview
10;2. (D) Purpose, Scope and Definitions
,
10.3.. (UIIFOUO) t'actorsto Cpnsider Wh~l1lnjti.li.tihg9r Appr;.bvinglln Inves!igativ~
Actiyity Involving.a Sensitive Investigative Matter
: ~
10.4. (D) Duration, Approval, Notice and Documentation
;
10.5. (UlIFOUO) Distinction Between Sensitive Investigative Matter and Sensitive
Circumstance
,
i

l0S
108
108

i 09
110
111

11. (U) Investigative Metho~s
~
112
11.1. (l,J) Overview
,
1·12
II.Ll.. (U) Least Intrusive Method
112
11.2.. (V) Authorized Investigative Met~ods in Assessments and Predicated Iiwestigationsl13
,.. 113
11.2.1. (D) AuthQrized Investigative Methods in Assessments
11.2.2. (U) Authorized Investigative Methods in Preliminary Investigations
113
11.2.3. . (D) Authorized Investigative Methods in Full Investigations
114
1].2,lt (U) Particular Investigative Methods .. i
~
ll5
11.3. (V) Investigative Method: Mail Covers
:
.116
1-1.3.1. 'CD) Summary
116
,11.3.2. (D) Legal Authority
:
116
11.3.3. (D) Definition of Investigative Method
~
,
116
11.3.4. (U) Standard for Use and Approval Requirements for' Investigative M~thod ] 17
1'1.3.5. (V) Duration ofApproval
119
11.3.6; (D) Specific Proce9ures
,
:
119
11.3.7. (l) Compliance and Monitoring
119
11.4. (D) Investigative Method: Physjcal searches of persoriaI or teal property where a
warrant or court order is not legally required because there is no reasonable
expectation of privacy (e.g., trash covers)
,
; 1~O
11.4.1. (D) Summary
,
:
120
.11.4.2. (V) Legal Authority
"
,
120
120
11.4.3. (U) Definition of Investigative Method

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Domestic Investigations and Ope~tions Guide
11.4.4.

(U/IFOUO) Standards for Use and Approval Requirements for Investigative ..
Method
:
,
121
11.5. (V) Investigative Method: Consensual Monitoring of Communications, including
,
consensual c:omputermonitoring
,
:.: : 122 .
I 1.5.1. (U) Summary
:
122
11'.5.2. (V) Legal Authority
:
122
11.5.3. (U) Definition of Inv~stig?tiveMethod
:
~
.l22
11.~.4.
(D) Standards for Use and Approval Requirements for Investigative Method 123
11.5.5. (U) Duration of Approval
,
:
.127
11.5.6. (UlIFOUO) Specific.Procedures
128
'1 1:5.7. (UI/FOUO) Compliance and Monitorlng
:
,
129
11.6. (U) Investigative Method: Use of closed-circuit television, direction finders, and other
monitoring devices (Not needing a Court Order) , ,
130
1~.6.I. (U) Summary ,
,
130
11.6.2. (U) Legal Auth6rity
,
130
11.6.3. (U/IFOUO) 'Definition of Investigative Method
,
130
11.6.4. (UlIFODO) Standards for Vse and Approval Requirements for Investigative •
:
:
,
131 .
Method
! 1,(,);5, (lJ)DurationofApproval
,
,
132
I 1.6.6. (UI/FOUO) Specific 'Procedures
132
11 . 6~7. (UlIFOUO) Compliance and Monitoring
,
133
11.7. (U) Investigative Method: Polygraph
134
11.7.1. .(U)'Summary
,
134
11.7.2. (U) Lega,l Authority
: "
~
,.. 134
1'1.7-.3. (V//FOUO) Definition of Investigative Method
134
11.7.4. (UI/FOUO) Standards for Vse and Approval Requirements for Investigative
Method
,
134
1'1'.7.5. (U) Durat.ion of Approval
·:134.
11.7.6. (U/IFOUO) Specific Procedures
:
135
11.7.7. (U/IFOUO) Compliance and Monitoring
135
11.8. (D) Investigative ,Method: Undercover Operations
136
11 ;8:1. (U) Summary
136
11.8.2. (U) Legal Authority .:
136
11.8.3., (UlIFOUO) Definition ,of Investigative Method
136
(UlIFOUO) Distinction Between Sensitive,Circuinstanc~and Sensitive Investigative Matter: 137
11.8.4. (UlIFOUO) Standards for Use ami Approval Requirements for Investigative
Method
.137
11.8.5. (U) Duration of Approval
139
1.1.8.6. (U) Additional Guidance,
:
139
11.8.7. (U//FOUO) Compliance and Monitoring, and Reporting Requirements
139
11.9: .(U) Investigative Method: Compulsory process as authorized by law, including grand
jury subpoenas and other subpoenas, National Security· Letters
:
140
11.9.1. (U) Federal Grand Jury Subpoena
,
,
140
11.9.2. (U) Ad.ministrative Subpoena
:
152
1. ] .9.3.
(U) National Security Letter
:
:
1S8
11.9.4. (U) Business Record Under FISA
;
165.

.

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Domestic Investigations and Operations Guide
11.10. (D) Investigativ~ Method: Accessing stored wire and electronic communications and
transa~tional records in confonnity with chapter] 21 of title 18, United States Code167
11.10.1. (U) Summary
167
11.10.2. (U) Legal Authority
168
l"l;] 0.3. (U) Definition ofInvestigative Method
I68
·11.10.4. (0) Approval Requirements for Investigative Method
; ,
I 79
11.10.5. (U) Duration of Approval
179
11. ~ 0.6. (U//FOUO) Specific Procedures
:
,
179
:
180
11.10.7: (U) Notice and Reporting Requirements
11.10.8. (U) Other Applicable Policies
180
(U) Stored Communications Quick Reference Guide 511/2008
180
11.11. (U) Investigatiye Method: Pen Registers and Trap and Trace devices in conformity
with chapter 206 of Title 18, United States Code, and the Foreign Intelligence
Surveil lance Act
,
,
181
·11.l1.1. (U) Summary
,
181
11.11.2. (l)"Legal Authority
:
181
ILl 1.3. (U) Definition oflri.vestigative Method
,
181
11.11.4. (U) Standards for Use and Approval Requirements for Investigative Method 181
11.11.5. (U)Duratioh,ofApproval
;
·
·..:
184
1] .11.6. (UlIFOUO) Specific Procedures
184
ILl r.7. (U) Use and Dis~emination of Information Derived from Pen Register/Trap and
Trace Authorized Pursuant to FISA
,
185
11.11.8. (U) Notice and Reporting Requirements
186
11:11.9. (U) Special Circ~mstances
:
186
11.12. (U) Investigative Method:' Electronic Surveillance under Title III and under FISA ..:193
,
193
11.12.1. (U) Summary ;
:
11.12:2. (U) Legal Authority
;
:
193
11.12.3. (0) Definition ofInvestigative Method
193
11.12.4. (0) Standards for Use'and ApprovaLRequirements for Investigative Method 19,3
11.12.5. (U) Duration ofApproval
1'96
11.12.6. (U) Specific Procedures
:
;
,196
11.12.7. (U) Notice and Reporting R~qujrements
'
,
,
199
1'1.12.8. (U) Compliance and Monitoring
;
200
11.12.9. (U) Special Circumstances
200
11.12.10. (D) Other Applicable Policies
:
,
200
11.13. (U) investigative Method: Physical searches, including mail openings, requiring
.
judicial order or warrant
20 I
11.13.1. (U)Summary
,
:
;
201
11.13.2. (U) Legal Authority
,
.201
11.13.3. (U) Definitjon of Investigative Method
,
:
201
11.13.4. (U) Approval Requirements for Investigative Method
204
J L] 3.5. (U) Duration of Approval
;
204
1L 13.6. (u) Specific Procedures
;
'
:
204
1Ll4. (U) Investigative Method: Acquisition of foreign intelligence information in
conformity with Title VII of the Foreign Intelligence Surveillance Act..,..,
213
11.14.1. (U) Summary ..:
:
.213
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Domestic Investigations a~d Operations Guide
11.14.2. (U) Legal Authority
,
,
11.14.3. (U)Definition of Il1vestigativeMethod
,
11.14.4. (UlIFOVO) Standards for Vse and Approval Requirements for Investigative
Method
,
11.14.5. (V) Duration of Approval
11.14.6. OJ//FOVO) Specific Collection Procedures for Title VTT

213
213
213
213
2~3

12. (U) Assis~ance to Other Agencies
~ :
2l6
12.1. (U) Overview
216
12.2. (V) Purpose and Scope
, 216
12.3. (VIIFOVO) Standards for Providing and Approving Investigative Assistance to Other
Agencies
,
217
12.4. (D) Documentation and'Record Retention
217
12.5. (V) Duration, Approval/and Notice for Investigative Assistance to Other Ag<mcies ..217
12:6. (U/IFOUO) Standards for Providing and Approving Technical Assistance to Foreign,
State, Local and Tribal Agencies
,
225
13. (U) Extraterritorial Provisions
13.1. (V) Overview ,
; ,
13.2~ '(U)-Purpose'and Scope
13.3. (U) Legal Attache Program

:

:

:

227
227
221'
228

:
;

0'

14. (U) Retention and Sharing of Information
\4.1. (U) Purpose and Scope
;
14.2. (U) The FBI's Records Retention Plan, and Documentation
,
,
14.3. (U) Information Sharing
,
14.4. (U) Information Related to Criminal Matters
A. (U) Coordinating with Prosecutors
,
B: (U) Criminal Matters Outside'FBI Jurisdiction
C: (D) Reporting of Criininal Activity~
14.5. (U) Information Reiated to National Security and Foreign 11ltelligence Matters
(D) Department of Justice
,
,
,
(D) White House
,
'
,~
14.6. (U) Special Statutory Requirements
~
;

;229
229
229
230
231
231
231
232
.232
232
233
235

15. (D) Intellige~ce Analysis and Planning
236
15.1, (U) Overview
236
15.2. (V) Purpose and Scope
236
237
15.3. (U) Civil Liberties and Privacy
15.4. (U) Legal Authority
,
237
15.~. (UI/FODO) Standards for Initiating or Approving Intelligence Analysis and Planning238
15.6. (V//FOUO) Standards for Initiating or Approving the Use of an Authorized
Investigative Method in IntelligenceAnalysis and Planning
,
238
238
15.7. (U) Authorized Activities in Intelligence Analysis and Planning
16. (U) Undisclosed Participation (l;JDP) ,
16.1. (D) Overview
16.2. (D) Purpose, Scope, and D~finitions

,
,

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242
243

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Domestic Investigations and Operations Guide

J6.3. .(U) Requirements for Approval
16.4. (U) Supervisory Approval Not Required
16.5. (UI/FOUO) Standards for Review and Approval
16.6. (U) Requests for Approval of Undisclosed Participation
16.7. (D) Duration
i 6.8". (UIIFOUO) Sensitive Oversight Review Committee

.245
248
249
.250
251
251

:

<

17. (U) Otherwise Illegal Activity : ~
17.1.. (D) Overview
17.2. (U) Purpose and Scope
:
17.3.. (UIIFOUO) OIA in Undercover Activity
17.4. (UI/FOlJO).OIA for'a Confidential Human Source
17:5. (UIIFOUO) Approval ofOIA by a Special Agent in Charge
17~6. (UI/FOUO) Standards for Review and Approval ofOIA
17.7. (U//FOUQ) OIA not authorized
17.8. (U//FOUO) Emergency SitJ.\ations
;
<

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~.,

,
,

256
,.256
256
256
257
257
258
258
258

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, Domestic Investigations and Operations Guide

List of Appendices
Appendix A: The Attorney General's Gu~delines for 'Domestic FBI Operations

A-I

Appendix B: ,Executive Order 12333

B-l

,

, ,

Appendix C: Sensitive Operations Review Committee

,

C-I

Appe~dixn: Superceded Documents. and NFIf, MIOG, and MAOP Sections

D-I

Appendix E: Key Words, Definitions, and Links

lj:;.1

,

, ,

Appendix F: Acronyms.•••.;

F-l

Appendix G: Investigations Manual.- (::Iassified Provisions,

,.•....,

,

G-l

r

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Domestic Investigations and Operations Guide

(U) Preamble
December I,2008

(02 As the primary investigative agency of the federal government, the FBI has the authQrity and
responsibility to investigate all violations of federal law that are not exclusively assigned to
another federal agency. The FBI is'further vested by law and by Presidential directives with: the
primary role in carrying outcriininal investigations and investigations of threats to the national
security of the United States. This inCludes the lead domestic role in investigating international
terrorist threats to the United States, and in conducting counterintelligence activities to I;ounter
foreign entities' espionage an9 intelligence efforts directed against the United States. The FBI is·
also vested with important functions in collecting foreign infelligence as a member agency of the
Onited States Intelligence Community (USIC). (AGG-Dom, Intropuction)
(U) While investigating crime, terrorism, and threats to the national security, and collecting
foreign intelligence, the FBI must fully comply with all laws and regulations, including those
designed to protect civil liberties and privacy. Through compliance, the FBI will continue to earn
the support, confidence and respect of the people of the United States.
(U)To assist tneFBIin,itsmission, theAttomey General signed The Attorney General ~s
Guidelinesfor Domestic FBl Operations (AGG-Dom) on September 29, 2008. The primary
purpose of the AGG-Dom and the'Domestic Investigations and Operations Guide (OlOG) is.to
standardize policy so that criminal,national security, and foreign intelligenct: investigative
activities are accomplished in a consistent manner, whenever possible (e.g., same approval,
notification, and reporting requirements). In addition to-the 0I0G, each FBlHQ substantive
Division has a policy implementation guide (PO) that supplements this document. Numerous
FBI mal1uals, electronic communications, letterhead memoranda, and other policy documents are
incorporated' into the OlOG and the substantive Division policy implementation guides, thus,
c~msolidatingthe FBI's policy guidance. The FBIHQ Corporate Policy Office (CPO) plays an
instrumental role in this endeavor. Specifically, the CPO maintains the most current version of
the OlOG on its website. AsJederal statutes, executive orders, Attorney General guidelines, FBI
, policies, or other relevant autho~ities change, CPO will electronically update the DIOG af!;er
appropriate coordination and required apprqvals.
(U) The changes implemented by the maG should better equip you to protect the people of the
United States against crime and threats to the national security and to collect foreign intelligence.
This is your document, and it requires your i,nput so that we can provide the best service to our
nation. If you discover a need for change, please.forward your sugges~ion to FBIHQ CPO;
,(U) Thank you for your outstanding service!

Robert S~ Mueller, III
Director

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1. (U) S~ope and Purpose
, 1.1.

(0) Scope

(D) Tile DIOG applies to all investigative activities and intelligence collection activities
conducted by the FBI within the United States or outside the territories of all countries. This .
policy document does not apply to investigative and intelligence coll.ection activities ofthe.FBI
in foreign countries; those are governed by The Attorney General's Guidelines for
Extraterritorial FBI Operations.
'

1.2.

(D) Purpose

(U) The purpose of the DIQG is to standardize policy so that criminal, "national security, and
foreign intelligence investigative activities are consistently and uniformly accomplished
whenever possible (e\g" same approval, notification, and reporting requiremen(s).
(U) This policy document also stresses the importance of oversight and self-regulation to .ensure
that all investigative and intelligence collection activities are conducted within Constitutional
and statutory parameters and that civil liberties and privacy are protected.
(U)-Inaddition-to this policy ct.ocurrierit,eacIiFBIHQsubstantive Division·has a.' PG that
supplements the DIOG. As a result, numerous FBI manuals, electronic communications,
letterhead memoranda, and other policy documents are incorporated into the mOG and Division
PGs, dius, consolidating F~I policy guidance.

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4. (U) General Authorities and Principles ,
2.1.

(U) Scope of the Attorney General's Guidelines for Domestic FBlOperations

(0) The Attornev General's Guidelines for Domestic FBI Operations (AGG-Dom) apply to
investigative and iptelligence collection activities conducted by the F~T within the United States,
in the United States territories, or outside the territories.of all countries. They do ~ot apply to
investigative and 'intelligence collection·activities of the FBI in foreign countries, whjch will be
governed by the Attorney General's Guidelinesfor Extraterritorial FBI Operations, when
published. (Reference: AGG-Dom, Part LA.)
(lJ) The AGG-Dom replaces the following six guidelines:
•

(U) The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and
Terrorism Enterprise Investigations (May 30, 2002)

•

(U) The Attorney General's Guidelinesfor FBINational Security Investigations and
Foreign Intelligence Collection (October 31, 2003)

•

(U) The Attorney General 's Suppl~mentcll Guid¢lines for Collection, Rerention, and
bissembiatfon ofForetgn I~telligence (November 29; 2006)

•

(U) The Attorney General Procedure for Reporting and Use ofInformation Concerning'
Violations ofLaw and Authorization for Participation in Otherwise Illegal Activity in FBI
'Foreign Intelligence, Counterintelligence or International Terrorism Intelligence
Investigations (August 8, 1988).

•

(U) The Attorney (leneral.'s Guidelinesjor Reporting on Civil Disorders and
Demonstrations Involving a Federal Interest (April 5, 1976)

•

tU), The Attorney General's Procedures for Lawful. Warrantless Monitoring of Verbal
Communications (May 30, 2002) [only portion applicable t9 FBI repealed]'

(U) The Attorney General will be issuing a separate set of new guidelines for extraterritorial
operations, the Attorney General's Guidelinesfor Extraterritorial FBI Operations. However,
certain of the existing guidelines that are repealed by the AGG-Dom currently apply in part to
extraterritorial operations, including the Attorney General's Guidelines for FBI National Secur.ity
Investigations and Foreign Intelligence Collection, and the Attorney General Procedure for
Reporting and Use ofInformation Concerning Violations ofLawahd Authorization for
Participation in Otherwise Illegal Activity in FBI Foreign Intelligence, Coil11teril1telligence or
Interflational Terrorism Intelligence Investigations. To ensure that there is no gap in the
existence of guidelines for extraterritorial operatioI!s, these existing guidelines will remain in
effect in their applicatioi1 to extraterritorial operations until ~he Attorney General's Guidelines
for Extraterritorial FBI Operations are issued and take effect, notwithstanding the general repeal
ofthese existing.guidelines by the AGG-Dom.
(D) Also, the classified Attorney General Guidelines for Extraterritorial FBI Operation and
Criminal Investigations (1993) will continue to apply. to FBI criminal investigations, pending the
execution of the new guidelines for extraterritorial operations, as discus~ed 'above. Finally, for
national security and foreign. intelligence investigations, FBI investigative activities will continue
to be processed as set forth in the classified'Memorandum o(Understanding Concerning

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Overseas and Domestic Activities.olthe Central Intelligence Agency and the Federal Bureau ot
Investigation (2005).
2.2. . (U) (;eneral FBI Authorities under AGG-Dom
(U) The AGG-Dom recognizes four broad, general FBI authorities. (AGG-Dom, Part I.B.)
A. (U)

Condu~t

Investigations and Collect Intelligence and Evidence

(U) The FBI is authorized to collect intelligence and to conduct investigations to detect,
obtain information about, and prevent and protect against federal crimes and threats to the
national security and to collect foreign intelligence, as provided in the DIOG (AGG-Dom,
Part II).
(V) By regulation, the Attorney General has directed the FBI to:inves~igateviolations of the
laws of the United State~ and collect evidence in cases in which the Vnited States is or may
be a party in interest, except in cases in which such responsibility is by statute or otherwise
specifically assigned to another investigative agency. The FBI's authority to investigate and
collect evidence involving criminal drug laws of the U.nited States is concurrent with such
authority of the Drug Enforceplent.Admihistration (28 C.F.R.§ 0.85[a]).

B.. (U) P!"()vi<l~.!nyestigative A.~sistap.ce
(V) The FBI is authorized,to provide. investigative assistance to other federal, state, local, or
tribal agencies, and foreign agencies as provided in Section 12 oftheOlOG (AGG-Dom, Part
III).

C. (V) Conduct Strategic Analysis and Planning
(U) The FBI is authorized to conduct intelligence analysis and planning as provided in
Section 15 ofthe OlOG (AGO-porn, Part IV).
D. (V) Retain and Share Inf~rm~tion

(U) The FBI is authorized to retain and share information obtained pursuant to the AGGDom, as provided in Section 14 of the OlOG (AGG-Dom, Part VI).
2.3;

(U) FBI as an Intelligence Agency

(U) The FBI is an intelligence agency as well as a law enforcement agency. Its basic functions
accordingly extend beyond limited investigations of discrete matters, and include broader
analytic and planning functions. The FBI's responsibilitics in this area derive from vilrious
administrative and-statutory sources. See Executive Order 1,2333; 28 V.S.C. § 532 note
(incorporating P.L. 108-458 §§ 2001-2003) and 534 note (incorporating P.L. 109-162 § U 07).
(U)Part IV of the AGG-Dom authorizes the FBI to engage in intelligence analysis and planning,
drawing on all lawful sources of information. The functions authorized underthat Part includes:
(i) development of overviews and analyses concerning threats to and vulnerabilities of the United
States and its intcrests; (ii) research and analysis to produce reports and assessments (see note
below) concerning matters relevant to investigative activities or other authorized FBI activities;
and (iii) the o'peration of intelligeqce systems that facilitate and support investigations through
the compilation and analysis of data and information on an ongoing'basis.
(D) Note: In the mOG, the word "assessment" has two distinct meanings. The AGG-Dom
authorizes as an investigative activity an "assessment'; which require!! an authorized purpose as

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discussed in the DIOGSection 5. The;: United State~ In~elligence Community (USIC), however,
also uses the word "assessment" to describe written intelligence products as discussed in th~
DIOG Section 15.7.8.

2.4.

(U) FBI Lead Investigative Authorities

A. (U) IntroductiQD
(U/iFOUO) The FBI's primary inv~stigative authority is derived from the authority.ofthe
Attorney General as provided in 28 U.S.C. §§ 509, 510, 533 .and 534. Within this authority,
the Attorney General' may appoint officials to· detect crimes against the United States and to
conduct such other investigations regarding official matters under the control of the
Department of Justice (DOJ) and the Department of State'(DOS) a's may be directed by the
Attorney General (28 U.S.C. § 533). The Attorney General has delegated a number of his
statutory authorities and granted otherallthorities to the Director of the FBI (28 C.F.R.
§ 0.85[a]). Some ofthese authorities apply both inside and outside the United States.

B. CU) Terrorism and ,Counterterrorism Investigations
(U) The Attorney General 'has directed the FBI to exercise Lead Agency responsibility in
investigatinKali crimes for whi~h' DOJ has primary or concurrent jurisdiction and which
involve terrorist activities oractsinpreparation ofterrorfstactivities within the statutory
jurisdiction of the United States. 'Within the United States, this includes the coilection,
coordination, analysis, m~nagemeht and dissemination of intelligence and criminal
information, as appropriate. If another federal agency identifies an individual who is engaged
in terrorist activities or in acts in preparation Qfterrorist-activities, the other agency is
required to promptly qotify the FBI. Terrorism, in this context, includes the unlawful use of
force and ·violence against persons or property to intimidate oJ,: coerce a government, the
civilian population, or any segment thereof, to further political or social objectives (28 C.F.R.
§0.85[a]).
-

C. (U) ·"Federal Crimes of Terrorism"
(U) P,ursuant to the delegation in 28 C.F.R. § 0.85(a), the FBI'exercises the Attorney
General's lead investigatIve responsibility under 18 U.S:C. § 2332b(t) for all "federal crime~
of terrorism" as identified in that statute~ Many of these statutes grant the FBIextraterritorilii
'investigative responsibility. Check the cited statute for the full particulars concerning
elements of the offense, jurisdiction, etc. Under 18U.S.G..§ 2332b(g)(5), the term "federal
crime ofterroris!TI" means an offense that is: (i) calculated to influence or affect the conduct
of government by intimidation or coercion or to retaliate against government conduct; and (ii)
is a violation of fedex:al statute rdating to:

I. (V) Destruction of aircraft or aircraft facilities (i8 U.S.C. § 32);
2. (U) Viole!1ce at international airports'(appqes to offenses occurring outside the United
Statesiricertain situations) (18 U.S.C. § 37);

3.
.

\

(U) Arson within "special maritil1J.e and territorial jurisdiction of the United States"
(SMTJ is defined in 18 U.S.C. § 7) (18 U.S.C. § 81);

4. (U) Prohibitions with respect to biological weapons (extraterritorial feder~1 jurisdiction if
offense committed by or against a United States national) (18 U.S.C. § 175);

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5. (U) Possession of biological agents or toxins by restricted persons (18 U.S.C. § 1,75b);
6. (U) Variola virus (includes smallpox· and other derivatives of the variola major virus)
(applies to offenses occurring outside the Uh!ted States in certain situations) (18 U.S:C.
§ 175c);
7. (U) Prohibited activities regarding chemical weapons (applies to offenses occurring
outside the United States in certain situations) (18 U.S.C. § 229) (E.O. 13128 directs any
possibleviblation of this statute be referred to the FBI);
8. ('V) Congressional, Cabinet, and Supreme Court assassination, kidnapping and assault (18
U.S.C. § 351 [a]-[d)) (18 y.S.C. § 351 [gj directs that the FBI shall investigate violations
of this statute);
9: (V) Prohibited transactions involving nl!clear materials (applies t9 offenses occurring

outside the l)nited State~ in certain situations) (18 U.S.C. § 831);
10. (U) Participation in nuclear and weapons of mass destruction threats.to the United States
(extraterritorial federaljurisdicti,on) (18 V;S.C. § 832);
11. (V) Importation, exportation, shipping,:transport, transfer, receipt, or possession.o(plastic

.explosives that do.i1citc6nmina detectionagent(l8U.S.C. §.842[m] ang [n]);
12. (U) Arson or bombing of govemme~t property risking or causing death (18 U.S.C"
§ 844[f][2] or [3]) (18 U.S.C., § 846[a] grants FBI and the Bureau.of Alcohol, TobaccQ,
Firearms, and Explosives (ATF) concurrent authority to investigate VIolations of this
statute);
13. (V) Arson or bombing of property used iii or affecting interstate or foreign· commerce (18
V.S.~,,§ 844[i)) (18
§ 846[a] grantsEBJ and ATF concurrent authority to
investigate violations of this statute);

a.s.c.

14. (V) Killing or attempted killing during ~n attack on'a federai facility with a dangerous
weapori (18 V.S.C. § 930[c]);

15. (U) Conspiracy within Vnited States jurisdiction to Q1urder, kidnap,or maim persons ,at
any place outside the United States (18 U.S:C. § 956[a][I]);
16. (V) Using a computer for unauthorized access,.transmission, or retention of protected
information (18 U.S.~'.:§,1036[a][I]) (18 V.S.t: § 1030[d][2] grants the FBI "primary

authority" to investigate Secti<;m 1030[a][I] offens~s involving espionage, foreign
counterintelligence, information protected 1!-gainst unauthorizeddis~lostire for reasons of
national defense or foreign relations, or Restri9ted Data as'd~fined i.n'the Atomic Energy
Act, except for offenses affecting United Btates Secret Service (VSSS) d~ties under 18
V:S.C. § 3056[a]);
.
17. (V) Kl\owingly transmitting a program, information, code, or command and thereby

intentionally causing damage, without authorization, to a protected computer (18 U.S.C.
§ 1030[a][5][A][i));
18. (U) Killing or attempted killing of Officers or employees of the United Stat~s, including
any member 9ftheunifonned services (18 U.S.C. § 1114);

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19, (U) Murder-or manslaughter offoreign officials, official guests, or internation~lly
protected persons (applies to offenses occurring outside the United States In certain
situations) (18 U.S:C. § 1116) (Attorney General may request_military assistance in the
course of enforcement of this section);
20. (U) Hostage taking (applies to offenses occurring outside the United States in certain
situations) (18 U.S.C. § 1203);
21. (D) Willfully injuring or committing any depredation against government property or
contracts (18 U.S.C. § 13(1);
22. (U) Destruction of communication lines, stations, or systems (18 U.S.C. § 1362);
23. (U) pestruction or injury to bulIdings or property within special.maritime and territorial
jurisdiction of the United States (18 U.S.C. § 1363);
24. (U) Destruction of $1 00,000 or more of an "ene~gy facility" property as defined ·i.n the
statute (18 U;S.C. § 1366);
25. (U) Presidel1tial and Presidential staff assassination, kidnapping, and a~s~l,lIi: (18 U.S.C.
§ 1751[a], [b], [c], or[dJ) (extraterritorial jurisdiction) (Per 18U.S.C. §,1751[i], 1751
violations must beinves,tigated by the FBI; F}?l niay!"~qu.~~t ?ssistance fr(lm any f~~enl1 .
[including military], state, or local agency notwithstanding any statute, rule, or regulation
to the contrary);
26. (U) Terrorist attacks and other violence against railroad carriers and against mass
transportation.systems on land, on water, or through the air (includes a school bus,
charter, or sightseeing transportation; or any means of transport on land, water, or
through the air) (I8 U.S.C.. § 1992);
,
27. (U) Destruction of national defense materials, premises, or utilities'08 U.S.C. § 2155);
28. (D) Production of defective national defense materials, premises, or utilities (18 U.S.C.
§ 2156);
29. (U) Violence against maritime navigation·(18'U.S.C. § 2280);
30. (U) Violence against maritime fixe~ platforms (located on the continental shelf'ofthe
United States or lo~ated internatioI).allyin certain situations) (18 U.S.C. § 2281);
31. (U) Certain homicides. and other violence against United States nationais occurring
outside of the United States (18 U.S.C. ,§ 2332);
32. (U) Use of weapons oftpass destruction (againsta national of the United States while
outside the United States; against certain persons or property within the United States; or
oy a national of the United States outsidethe United States) (18 U.S.C. § 2332a) (WMD
defined in 18 U.S.C. § 23;32a[c][2]);
33. (U) Acts of terrorism transcending national boundaries (includes murder,kidnapping, and
other prohibited acts occurring inside and outsid~ the Uriited States under specified
circumstances -including that tne victim is a member of a unifonn serv1ce; includes
offenses committed in the United States territorial sea and, airsp~ce above and seabed
below; includes offenses committed in special maritime and territorial jurisdiction of the
United States as defined in 18. U.S.c. § 7) (18 U.S.C. § 2332b);

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34. (U) Bombings of places of public use, government facilities, public transportation
systems and infrastructure facilities (applies to offenses oc~urring inside or outside the
United States in certain situations; does hot apply to activities of armed forces during an
armed' conflict) (18 U.S.C. § 2332f);
35. (U) Missile systems designed to destroy aircraft (applies to offenses occurring outside the
United States in certain situations) (l8U.S.C. § 2332g);
36. (U) Radiological dispersal devices (applies to offenses occurring outside the United
States iJ:l certain situations) (l8 U.S.C. § 2332h);
37. (U) Harboring or concealing terrorists (18 U.S.C. § 2339);
38. (U) Providing material support or resources to terrorists (18 U.S.C. § 2339A);
39. (U) Providing material support or resources to designated foreign terrorist organizations
(extraterritori,al federal jurisdiction) (l8 U.S.C. § 2339B) ("The Attorney General shall
conduct any investigation of a possible violation of this section, or of any license, order,
or regulation issued pursuant to this section." 18 U.S.C. § 2339B[e][I]);
40. (U) Prohibitions against the financing of terrorism (applies to offenses occurring outside
the ljnited States in certain situations including on board a vessel flyiqg the flag of.the
United States or an aircraft registered under the laws ofthe DnitedStates) (lSD.S.C.
, § 2339C) (Memorandum of Agreement between the Attorney General and the,Secretary
of Homeland Security, dated May 13,2005: FBI leads all terrorist financing
investigations and operations);
41. (U) Relating to military-type training from a foreign terrorist organization (extraterritorial
jurisdiction) (18 U.S.C. § 2339D);
42. (U) Torture applies only to torture committed outsi,de the United States in certain
situations; torture is defined in f8 U.S.C. § 2340'(18 U.S.C. §2340A);
43. (U) Prohibitions governing atomic weapons (applies to offenses occurring outside the
United States'in certain situations) (42 U.S.C. § 2122) (FBI shall investigate alleged or
suspected violations per 42 U.S.C. § 2271 [b]);
44. (U) Sabotage ofhuclear facilities or fuel (42 U.S.C. § 2284) (FBI shall investigate
.alleged or suspected violations per 42, U.S.C. § 2271 [b]);
45. (U) Aircraft,piracy (applies to offenses oc~urring outside the United States in c~rtaln
situations) (49 U.S.C. § 46502) (FBI shall investigate per 28 U.S.C. § 538);
46.·(U) Assault on a'flight crew with a dangerous weapon (applies to offenses occurring in
the "special aircraft jurisdiction 6fthe United States" as defined in 49 U.S.C. § 46501'[2]);
(second sentence of 49l!'S,C, '§ 46504) (FBI shall inv,estigate per 28 U.S.C. § 538);
47. (U) Placement of an explosive or incendiary device on an aircraft (49 U.S.C.
§ 46505[b] [3]) (FBI shall investigate per 28 U.S.C. § 538);
48. (U) Endangerment of human life on aircraft by means of weapons (49 U.S.C. §46505[c])
(FBI shall investigate per 28 U.S.C. § 538);
49. (U) Application of certain criminal'lawsto acts on.aircraft{ifhomicide or attempted
homicid~ is involved) (applies to offenses occun:ing in the "special aircraft jurisdiction of

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the United States" as defined in 18 U.S.C. § 46501[2]); (49 U.S.C. § 46506) (FBI shaH
investigate per 28 U.S.C.,§ 538);
/

50. (V) Damage or destruction Qf interstate gas or hazardous liquid pipeline facility (49
U.S.C. § 60 123[b]); and
51. (U) Section 10 lOA of the Controlled Substances Import and. Export Act (relating to
, narco-terrorism).·
.
D. (U) Additional offenses not defined as "Federal Crimes of Terrorism"
(V) Title 18 U.S.C. § 2332b(f) expressly gra,nts the Attorney General primary inY~stigative
authority for additional offenses not defined as "Federal Crimes of Terrorism." These
offenses are (Note: nothing in this section of the DIOG may be construed to interfere with
the USSS under 18 U.S.C. § 3056):

.1. (V) Congressi~nal, Cabinet, and Supreme Court assaults (18 U;S.C. § 351 [e]) (18 U.S.C.
§ 351 [g]) directs that the FBI investig~te violations of this statute);

.

2.(U) Vsing mail, telephone, telegrllph, or other instrument of interstate or foreign
commerce t~ threaten to kill, injure, or intimidate any individual, or unlawfully to
<!a.ma,ge. or de.~!rQY any lJuilding, veh~le,or ot!l~r real OJ:' pers()na.Lprope.rtypy JIl_~ans of
fire or explosive (18 U.S.C. § 844[e]); (18 V.S.C. § 846[a] grants FBI and ATF
'concurrent authority to investigate violations of this statute);

. ,

3. (U) Damages or destroys by meaIJ.s of fire or eJ'plosive any building, vehicle, or other
personal or real property, possessed, owned, or leased to the United States or any agency
thereof, or any institution receivirig federal financial assistance (18 U.S.C.· § 844[fl [1])
'(18 V.S.C; § 846[aJ grants FBI and ATF concurrent authority to investigate. violations of
this statute);' .
4. (V) Conspiracy within United States jurisdiction to damage or destroy property i'n a
.foreigri country and bf;longing to a foreign country, or to any railroad, canal, bridge,
airport, airfield, or other public utility~ pubiic conveyance, or public structure, or any
religious, educational, or cultural property so sitl,lated (18 .S:C. § 956[b]);

.u

,

.

5. (V) Destruction of$5,000 or more. of an "energy facility" property as defined in 18 U.S.C.
§ 1366(c) (1& V.S.C.§ 'l366[b]); and
6. (U) Willful trespass upon, injury to, destruction of, or interference with fortificatioJ;ls,
harbor defenses, ot defensive sea areas (18 V.S.C. § 2.152).
E. (U//FOUO) NSPD-46IHSPD-15, "U.S. Policy and Strategy in the War on Terror"
(UI/FOUO) Annex II (Consolidation and Updating of Outdated Presidential Countert~rrorism
Documents), dated January 10,2007, to National Security 'Presidential Directive (NSPDl
46/Homeland Security Presidential Directive (HSPD) 15, dated March 6,2006, establishes
IFBllead responsibilities. as W~l1 as !bo,e of other fed....1 eo';';" io ...• <om" on To_oo "
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I

(UI/FOUO) Areas addressed in Annex III ...

I
JU-l:>

ana Anne}( 11 thereto are classitied.

. F. (U)Counterintelligence and Espionage Investigations
(U//FOUO) A representative list offederal statutes applicable to counterintelligence and
espionage investigations appears below. For additional information, refer to the
Counterintelligence Program Implementation Guide and the.current list of espionage and
counterintelligence authorities.
1. (U) E~pionage Investigations of Persons in United States Diplomatic Missions
Abroad
(U) Section 603 of the Intelligence Authorization Act of 1990 (p..L. 101-193) states that,
subject to the authority of the Attorney General, "the FBI shall supervise the conduct of
all investigations bfviolations of the espionage laws of the United States by persons
employed by or assigned to'United States diplomatic missions abroad. All departments
and .~gencies ()h~J1 proviQ~. appr()pri~te ~~sistapce to the F~ I in the conduct of ~uch'
investigations.~'Consuit the Attorney General's extraterritorial gUldeiines and other
applicable policy or agreements.

2. (U) Investigations of Unauthorized Disclosure of Classified Information to a Foreign
Power or Agent ofaForeign Power
.
.
(U) The National Security Act of 1947, as amended, establishes procedures for the
coordination ofcounterintelJigence activities (50 U.S.C. § 402a). Part of that statute
requires that, absent extraordinary circumstances as approved by the President in writing
on a case-by-case basis, the head ofeach executive branch departrhent or agency must
ensure that the F~I is "advised immediately of any information, regardless of its origin,
which indicates that classified information is being, or may have been, disclosed in an
unauthorized manner to a.foreign power or an agent of a foreign power."
G. (U) Criminal Investigations
(U//FOUO) In addi~ion to the statutes listed above and below, refer to the Criminal
Investigative Division (CID) Program Implementation Guide (PG) for additional criminal
jurisQiction information.
.
1. (U) Investigations' of aircraft privacy and related violations
(U) The FBI shall investigate any violation of 49:U.S.C. § 46314 (Entering aircraft or
airport areas in violation of security ~equireqlents) or chapter 465 (Special aircraft
jurisdiction ofthe United States) of Title 49, United States Code. (28 U.S.C. § 538)
2. (U) Violent crimes against foreign travelers
(U) The Attorney General and Director of the FBI sh~1I assist state and local authorities
in investigating and prosecuting a felony crime of violence in viplation of the law of any
State in which the victim appears,~o have been selected because he or she is a traveler
from a fOi'eignn~tion. (28 U.S.C. § 540A[b])

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3. (U) Felonious killings of state and local law enforcement officers (28 U.S.C. ,§ 540); and
4. (D) lnvestigations'ofserial kiliings (28 U.S.C. § 540B)' .

H. (D) Authority of an FBI Special Agent
(U) An FBI Special Agent has the authority to:
. I. (U) Investigate violations of the laws, incluqing.the criminal drug laws, ofthe'United
States{2I'U:S.C. §'871; 28 U.S.C.§§ 533, 534 and 535; 28 G:F.R. § 0.85)..
2. (U) Collect evidence in cases in which the United States is or may be a party in interest
(28 C.F.R. § 0.85 [aD as redelegated through exercise of the authority contained in 28
C.F.R. § O. i38 to direct. personnel i~ the FBI.
3. (D) Make arrests (18 U.S.C. §§ 3052 and 3062).

4. (U) Serve and execute,arrest warrants and seize property under warrant; issue and/or
serve'admiriistrative subpoenas; serve subpoenas issued by other proper authority; and
, make civil investigative demands (18 U.S.C. §§ 3052, 3107; 2 I U.S.C. § 876; 15 U.S.C.
§ 1312).
~'

(m Carty firea11Ils (+8 U~S,C. § 3052),

6. (U) Administer oaths.to witnesses attending to 'testify or depose in the course of
investigations of frauds on or attempts to defraud the United States or irregularities or
misconduct of employees or agents of the United States (5 U.S.C. § 303).
7. (U) Seize property subject to seizure under the crimi,nal and civil forfeiture laws of the
United States (e.g~, 18 U.S.C. §§ 981 and 982).

8. (U) Perform other duties imposed"by.law.
2.5.

(U) Status as Internal Guidance

(U)The AGG-Dom and this mOG are set forth solely for the purpose of internal DOl and fBI
gu~dl:.m~e. They are not intended to, do not,and may no~ be relied upon to cr(':ate any right~~
substantive or p~ocedural, enforceable by law by any party' in any· matter, civil' or criminal, nor
do they place any limitation on otherwise lawful investigative and litigative'prerogatives of the
DOl and the FBI. (AGG-Dom, Part 1.0.2.)
.
2.6.

(U) Departures from the AGG-Do rn

A. (UIIFOUO) D~parture from' the AGG-Dom in Advance of an Operation: A beparture
from the AGG-Dam must be approved by the Director of the FBI', by the Deputy Director of
the FBI, or by an Executive Assistant Director (EAD) designated by the Director. The
Director bfthe FBI has designated the'EAD National Security Branch or the EAD.Criminal .
Cyber Response and Services Branch to gr~nt departures from theAGG-Dom. Notice of the
dep,arture must be provided to the General Counsel (GC)..
'B. (U//FOUO) Emergency Exception for a Departure from the AGG-Dom: If a departure
from the AGG-Dom is necessary without such prior approval because of the immediacy or
gravity of a threat to the safety of persons or property or to the national security, the Director,
the Deputy Director, or a designated EAD, and t1)e GC must be notified by the'official
granting the emergency departure as soon thereafter as practicable. The FBI must,provide
timely written notice of departures from the AGG-Dom to the~DOJ Criminal Division or

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National Security Division (N~D), as appropriate, and the Criminal Division or NSD must
notify the Attorney Gener~l and the D~puty Attorney General. Notwithstanding this
paragraph, all activities 'in all circumstances must be carried out if} a manner consistent with
the Constitution and laws of the United States. (AGG-D6m, Part J.D.3.)
C. (U/IFOUO) Records of Departures from the AGG-Dom: The Office ofihe General
Counsel (OGq is responsible for maintaining records of all requests and approvals or
denials of departures from the AGG-Dom.
2.7.

(D) Departures from ,the DIOG

A. {U/IFOUO) Departure from the DIOG in Advance of an Operation: Arequest for a
"departure froin" 'any provision of the DIOG must pe submitted to the,appropri.ate
substantive program Assistant Director (AD) and to the GC for approval prior to exercising a
departure from the DIOG. Th~ AD may designate the Deputy Assistan! Dire<1tor (DAD), and
the GC'may designate the Deputy General Counsel·for the National Security Law Branch
(NSLB) ~r the Deputy General Counsel for the Investigative Law Branch (ILB) to approve.
departures. N9twithstanding this paragraph, all activities'in all circumstances must be carried
out in a manner consistent with the Constitutiol1 and laws of the United States.

B.

(U/!FOtJO)Emergency Exception for a Departure ftoitfthe DIOG:-Ifa-departureis
necessary bec~use of the immediacy or gravity of a threat to, the safe~y of persons or property
or to the national securIty, the appr~)Ving,authority may, arhislher.discretlon, authorize an
emergency departure from the DIOG. As soon as practicable thereafter, the Special Agent in
(:harge (SAC) orFBIHQ Section Chief must provide, in writing, notice to the appropriate
AD and GC describing the circumstances and necessity for the departure. Notwithstanding
t~is paragraph, all activities in all circumstances must be carried out ina manner consistent·
with the Constitution and laws of the United States.

C. (U//FOUO) Records,ofDepartures from the'DIOG: The OGC ·is responsible for
, (inaint,aining records of all requests and approvals or denials of departures from the DIOG.
2.8.

(U) Other FBI Activities Not Limited by AGG-Do~

(U)'The AGG-Dom apply to FBI investigative activities as provided herejn and do not limit
other authorized activities of the FBI, such as the FBi's responsibilities to conduct background
checks and Inquiries concerning applicants ~n4 employees under federal personnel security .
progr~ms (e.g., background investigations), the FBI's maintenance and operation bfnational
criminal records systems and preparation .of national crime statistics, and the forensic assistance
and administration functions Of the FBI Laborato~. (AGG-Dom, Part I.D:4.)

(TJ)TBI employees may incidentally obtain information relating to matters outside of the FBI's
primary investigative responsibility. For example, inform,ation relating to violations of state or'
local law or foreign law may be incidentally obtained in the course Qf investigating federal
crimes or threats 'to the national security or in collecting foreign intelligence. The AGG-Dom
does not bar.the acquisition of such information in the course of authorized i~vestigative
activities, ~!)e retention of such information, or,its dissemination as appropriate to the responsible
authorities in. other jurisdictions. (AGG-Dom, Part II)

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2.9.

(U) Use of Classified Investigative Teclmologies

(U) Inappropriate use of classified investigative technologies may risk the compromise of such
technologies. Hence, in an investigation relating to activities in violation of federal criminal law,
that does not concern a threatto the national security or foreign intelligence, the use of such
technologies must be in conformity with the Procedures for the Use of Classified Investigative
Technologies in Criminal Cases. (AGG-Dom, Part V.B.2)
.

2.10.

(D) Application of AGG-Dom and DIOG

(UlIFOUO) The AGG-Dom and OlOG apply to all FBI domestic investigations and' operations
conducted· by "FBI employees" such as, but not limited to, applicable support personnel,
.intelligence analysts, special agents, task foice officers, detailees, FBI contractors, and
confidential human sources'(CHS). All orthese "FBI employees" are bound by the AGG-Dom
and 0I0G. In the 0I0G, the use of ''FBI employee" implies the use of all personn.el descriptions,
ifnbt otherwise prohibited by law or policy. For example, if the 0I0G states the "FBI
employee" is responsible for a particular i~vestigative activity, the supervisor has the flexibility
to assign that responsibility to any person bound by the AGG-Dom and 0I0G(Le.,. agent,
. intelligence analyst, task force officer), if not otherwise prohibited by law or policy.
.(UlIFOUO)FBTHQ:Divisionf>olicyJmplementation·Guid~~c.annot be less restIictive than ~he
0100. Additionally, FBIHQ Division Policy Implementation Guides must comply with the
policy contained in the orOG, unless approval for deviation from the DrOG is reviewed by the
General Counsel and approved by.the FBI Deputy Director.
.

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3. (U) Core Values, Roles, and Responsibilities
3.1.

(U) The FBJ's Core Values

(U) The FBI's values do not exhaust the many goals we wish to achieve, but they capsulate them
as well as can be. done in a few words. The FBI's core values must be fully understood, practiced,
shared, vigorously defended, and preserved. The values are:
•

(U) Rigorous obedience to the Constitution of the l,]nited States

•

(U) Respect for the digriity of all those we protect

•

(U) Compassion

•

(U) Fairness

•

(U) UncompromisiDg personal integrity and institutional integrity

•

Q

(U) Accountability by accepting responsibility for our actions and decisions and their
. consequences

(lI) Lel!d~rship,l:>Y e?',ll.mpl~, botlt!perspnll.l ang pr()fessipnal

(U) By observing these core values, we achieve a high level of excellence in performing the
FBPs.national security and criminal investigative functions as well as the trust of the American
people. Rigorous obedience to constitutional principles ensures that individually and
institutionally our adherence to constitutional guarante~s is more important than the. outcome of
any single interview, search for evidence, qr investigation. Respect for the dignity of all reminds
us to wield law enforcement powers with restraint. Fairness an9 compassion.ensure that we trel,it
everyone with the highest regard for constitutional, yivil, and human -rights. Personal and
institutional integrity reinforce each other and are owed to our Nation in 'exchange for the sacred
trust. and great authority conferred upon us.
.
(U) We who enforce the law 11).ust not merely obey it. We have an obligation to set a moral
example that those whom we protect can follow. Because the.FBI's success in acc.omplishing its
niission is directly related to the support and cooperation of those we protect, these core values
are the fiber that holds together the vitality of our institution.

(U) Compliance
(U) All FBIpersonn.el must fully comply with all laws, niles, and regulations governing FBI
investigations, operations, programs and activities, in~luding those set forth in' the AGG-Dom.
We cannot and do notcountenance disregard for the law for the ,sake ofexpediency in anything
we do.The FBI expects its personnel to ascertain the laws and regulations that govern the
activities in which they engage, to acquire sufficient knowledge of those laws, rules, and,
regulations to understand their requirements and to conform their professional aDd personal
conduct accordingly. Under no circumstances will expediency justify disregard for the law.'
Further, the FBI requires its employees to report to proper autl1ority.any known or suspected
failures to adhere to the law, rules or regulations by themselves or others. Information for
reporting such violations is available from the Office of Integritv and Complianc~ (OIC).

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FBI policy must be consistent with Constitutional, legal and regulatory requirements.
Additionally, the FBI must provide sufficient training to affected personnel and ensure that
appropriate oversight monitoring mechanisms are in place.

-3.2.

(U) Deputy Director Roles and Responsibilities

(UIIFOUO) The Deputy Director is the proponent of.the DIOG, and he has oversight regarding
compliance with the DIOG and subordinate implementing procedural directives and. divisional
specific policy implementation guides (PG). The Deputy Director is also responsible for the
development and the delivery of necessary training andthe'execution of the monitoring and
auditing processes, The Deputy Director works through the Corporate Policy Office (CPO) to
ensure that the DIOG is updated, as necessary, to 'comply with changes ih the law, rules, or
regulations, but not later than one year from the effective date of this DIOG, and every three
years thereafter.
.

3.3.

(U) Special AgentlIntelligence AitalystlTask Force OfficerlFBI
Contractor/Others Roles an~.ResPQnsibilities

(U/IFOUO) Agents, analysts, task force officers (TFO), FBI 'contractors a~d others bound by the
AGG-Dom·~nd·DIOGmust:·
A. (UlIFOUO) Ensqre compliance with the DIOG standards for initiating, conducting, and
closing an investigative activity; collection, a9tivity; or use of an investigative method, as
provided in the 0I0G;
B. (U/IFOUO) Obtain training on the DIOG standards relevant to h!s/her position and perfonn
activities consistent with those standards;
C. (U//FOUO) ~nsure all investigative activity complies with the ConstJtution, federal law,
executive orders, Presidential Directives, AGG~D9m, other Attorney General 'Guidelines,
Treaties, Memoranda of AgreementJUnderstan.ding, this policy document, and any other
applicable legal and poficy requirements (if an.agent, anl;llyst, TFO,. or other individual is
unsure of the legality ofany action, he/she must consult with hislher supervisor and Ch~ef
Division Counsel [CDC] or OGC);
D. (U/IFOUO) Ensure that civil liberties and privacy are protected throughout the assessment or
jnvestigative process;
E. (U/IFOUO) Conduct no investigative activity solely on the basis of activities that are
protected'by the First A~endment or so.lely on the basis of the race, ethnicity, national origin
or religion ofthe subject;
F. (UIIFOUO) Comply with the law, rules, or regulations, and report any non-compliance
concern to the proper authority, as stated i~ the DIOG Section 3.1; and
G. (U/IFOUO) Identify victims who have suffered direct physicai, emotional, or financial hann·
as result of the commission of federal crimes, offer the FBI's assistance to victims of these
crimes and provide victims' contact infonnation to the responsible FBI Victim Specialist, and
keep them updated on the status of the investigation. The FBI's responsibility for assisting
.
.
victims is continuous as long as there is ~n open investigation.

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3.4.

(U) Supervisor Roles and Responsibilities

A. (U) Supervisor Defi~ed:Supervisorsin~lude, but are not limited to, Field Office and
FBIHQ personnel jncluding: Supervisory Intelligence Analyst (SIA), Supervisory Special
Agent (SSA), Supervisory Senior Resident Agent (SSRA), Unit Chief (UC), Assistant
Special Agent in Charge (ASAC), Assistant Section Chief (ASC), Section Chief (SC),
Special Agent in Charge (SAC), Deputy Assistant Director (DAD), Assi,stal1t Director (AP),
Assistant Director in-Cha.rge (ADIC), and Ex~cutive Assistant Director (EAD).
B. (U) Supervisor R~sponsibilities:

1. (U/IFOUO) Anyone in a supervisory role that approves/reviews investigative or
collection activity must determine whether the standards for initiating, approving,
conducting, and closing an investigative activity, collection activity or investigative
method, as provided in theDIOG, are satisfied.
2. (UI/FOUO) Supervisors must monitor to ensure that all investigative activity, collection
activity and the use of investigative methods comply with the Constitution, federal law,
Executive Orders, Presidential Directives, AGG-Dom, other Attorney General Guidelines,
Treaties, Memoranda- of AgreementlUnd~rstilnding;,thispolicydocufueht,-and,any'other
applicable legal and.policy requirements.
3. (U/IFOUO) Supervisors must obtain training on the DIOG standards relevant to their
position, and conform their decisions tothose stand~rds. Supervisors must also ensure that
subordinates have recejved the required training on the DIOG standards and
requirements relevant t9 their positions.

all

4. (U//FOUO) All supervisors must ensure that civil liberties and privacy are
throughout the investigative process.

protec~ed

5. (U//FODO) If encountering a practice that does not comply with-the law, rules, or
regulations, the supervisor must report that compliance concern to the proper authority
.,and, when,necess,ary, take action to maintain compliance.
'
6. (UIIFOUO) Supervisors must not retaliate or take adverse action against_persons who
raise compliance concerns. (See OlC non-retaliation policy in the CPO policy and
guidance library)
C. (U/IFOUO) Supervisory Delegation: Throughout the DIOG, any requirement imposed on a
supervisor may-be performed by a designated Acting, Primary or Secondary Reli~f
Supervisor, unless specified otherwise by federal statute, Executive Order, Presidential
Directive, Attorney General Guidelines, FBI policy, or any other applicable regulation. All
delegations must be 'made in writing and retained appropriately.
.(UIIFOUO) A supervisor may delegate authority to a supervisor one level junior to himself or
herself, unless specified otherWise (e.g., the SAC may delegate authority to the ASAC). This
delegation must: (i) identify the task delegat~d; (ii) identify the supervisory position given
approval authority; (iii) be in writing; and (iv) be retained appropriately. This delegation
authority is not further delegable. Except as provided in the preceding paragraph, an SSA or
SIA may not delegate authority.
CUI/FOUO) Any supervisor can request that a supervisor at a higher level approve a
particular activity, so long as the higher-level supervisor is in the original approval

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supervisor's "c~ain·of·command" (e.g., SSA approval is required to open a preliminary
investigation;butthe SSA requests that hislher ASAC or SAC approve tile preliminary ,
investigation because he/she will be on TDY). Unlike delegations ofaut\1ority which require
written documentation, higher supervisory approval than required by the AGG-:bom or
DIOG does not require written authorization.
D. (UI/FOUO) File Reyiews: Full-time supervisors or primary relief superVisors (relief
supervisors require SAC approval) must conduct investigative file reviews with their
subordinates, as discussed below. Investigative file reviews must be 'conducted with all
agents, Resident Agents, TFOs, analysts, detailees, and FBl.contractors as appropriate.
Investigative file reviews for probationary agents are recommended every 30 days but must
be conducted at least every 60 days.
1. (U//FOUO) AssessmentJustificationlFile Reviews: Supervisors inust conduct 30-day
justification,reviews for types 1 and 2 assessments and 90-day file reviews for types 3, 4
and'6 assessments, as' required in Section 5 of the DIOG. These justification/file reviews
must: (i) evaluate the progress made toward the achievement of the authorized purpose
and objective; (ii) ensure activities that occurred in.the prior 30/90 days were appropriat~;
(iii) determine whether iUs reasqnably likely tlJat!nfQrtIlatign may be. Qbtain..eg t~.at i§
relevant to the authorized objective, thereby warranting an extension for another 30/90
'days;. (iv) determine whether adequate predication has been developed to'open and/or
coritinuesto justify a predicated investigation; and (v) determine whether the assessment
should be terminated..
a. (U//FOUO) 'J;ype 1 and 2 Assessments: Supervisory justification reviews must
be conducted for each 30 day period. Following the end of the 30~day period, the
agent, analyst, TFQ, detailee or FBI contractor and the supervisor have up to 10
calendar. qays to complete all aspects of the review and to appropriately document
the.r~view, as specified in this section of the DIOG.
b. (U//FOUO) Type 3,4 and 6 Assessments: Supervisory justification/file reviews
.must be conducted for each 90 day period. Following the end.of each 90 day
period, the l;lgent, analyst, TIO, detailee or FBI contractor and the supervisor have
up to 30 days to complete all aspects of the review ard to appropriately dO'cument
the review, as specified in this section of the DlOG..Investigative fiie reviews for
probationary FBI employees are recommended· every 30 days but must be
conducted at least every 60 days.
2. (U//FOUO) Predicated Investigations: Supervisory investigative file reviews must be
conducted'for each 90 day period. Following ,the end of each 90 day period, the agent,
analyst, TFO, detailee or FBI contractor and the supervisor have up'to 30 days to
complete all aspects of the review and to appropriately document the review, as sp~cified
in this section of the DlOG. Investigative filereviewsfor.probationary FBI employees
are recommended every 36 day~ but must be conducted at least every 60 days.
3. (U//FOUO) General ;policy for JustificationlFile. Reviews: Ajustification/fi!e review
mustbe: (i) in person or. by telephone when necessary (e.g., FBI employee is TDY); (ii)
conducted in privat~; and (iii) noted in the Autorriated Case Support (ACS) Investigl;ltive
Case Management Case Review or on the FD-71 or Guardian. Justification/file review
documentation must be executed in duplicate, with the subordinate being permitted to

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retain a'copy, and the originals retained by the supervisor in each subordinate's
adm~nistrative folder until the next inspection. If the subordinate only has applicant cases
assigned and is in compliance with FBI deadlines and regulations, the"'in-person
conference may be waived. If the conference is waived, the. supervisor will make suitable
comments concerning the subordinate's caseload, perfonnance, compliance with FBI
deadlin~s and regulations, and record the fact that no conference was held. The results of
thejustiflcationlfile reviews must be considered when.preparing inid-year progress .
reviews, annual appraisals, and developmental worksheets, except this provision does not
apply to TFOs, other agency detailees, or FBI Contractors.
E. (UI/FOUO) Unaddressed Work for Assessments and Full Inv~stigatioils
UI/FOUO

b2

b7E

(UI/FOUO~

.b2

b7E

(U//FOUo)

---.;;......,...

~_ _

__'_I_:__----'-. . .

b2

b7E

i

I
.. I

iUliFouo{

l....,

b2

b7E

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(UlIFOUO) The FD-71 provides a mechanism to assign an Assessment to an appropriate
Unaddressed Work File, if appropriate. In the FD-71, the Supervisor must select a .reason for
assigning the matter to the Unaddr~ssed Work File, and' choose the. appropriate classification.
Upon submitting the FD-71, a new Unaddressed Work File will be opened.

3.5.

(U) Chi~fmvision Couns,el Roles and Responsibilities

(tl//FOUO) The Chief Division Counsel (CDC) inust review all a~sessments and predicated
investigations involving sensitive investigative matters as discussed in DIOG Section 10 as well
as review the use of particular investigative'methods as discussed in Sections 5 and'U of the
DIOG. The primary purpose of the CDC's review is to ensure the legality of the actions
proposed. Review, in this context, includes a detennination that the investigative activity is: (i)
not legally objectionable (Le., that it is not based solely oil the exercise of.First Amendment
rights or on' the race, ethnicity, national origin or religion of the subject; and (ii) founded upon an
authorized purpose and/or adequate factual predication and meets the standard specified in the
DIOG. The c;DC should also include in his or her review'and recommendation, if appropriate, a
detennination of the wisdom of the proposed action (e.g., the CDC may have no legal objection
but may recommend denial because the value of the proposal is outweighed by the intrusion into
[egitimate privacy interests); The CDC;s·detennination·that.an irivestigative.activity is:-(i) riot
legally objectionable; and (ii) warranted from a mission standpoint is based on facts known at the
time of the review and recommendation. Often these facts are not verified or othe'rwise
corroborated until the investigative activity commences. As a result, the CDC may r~quire
additional CDC reviews or provide guidance to supervisory personnel with regard to monitoring
the results of the investigative activity to ensure that the authorized purpose and/or factual
predication remains in tact after the facts are. developed.
(V//FOUO) For investigative activities involving a sensitive investigative matter, the ~DC must,
also independently.consider the factors articulated.in the DIOG a~d provide the approving , .
authority wi~h a recommendation as to whether, in the CDC's judgment, the investigative
activity should be approved. Activities found to be legally objectionable by the CDC may not pe
approved unless and until the CDC's determination is countennanded by the FBI General
Counselor a delegated designee.
(V//FOUO) Throughout the DIOG, any requirement imposed on the CDC may be performed by
an Associate Division Counsel (ADC), Legal Advisor, or designated Acting CDC. All CDC
delegations must be made in writing and retained appropriately.

.3.6.

(U) Office of the General Counsel Roles and Respo~sibilities

(Ui'/FOUO) In coordination with the DOl NSD, the OGC is responsible for conducting regular
reviews of all aspects of FBI national security arid foreign intelligence activities. The primary
purpose of the OGC's review is to ensure the leg~lity of the actions proposed. These reviews,
conducted at FBI Field Offices and Headquarters' Units, broadly examine such activities for
cOlhpliance with the AGG-Dom and other applicable. requirements. Review, in this context,
includes a detennination that the investigative activity is: (i) not legally objectionable (Le., that it
is not based solely on the exercise of First Amendment rights or on the race, ethnicity,national
origin or relIgion of the subject; and (ii) founded upon an authorized purpose-and/or adequate
factual predication and meets the standard specified in the'DIOG. The OGC should also include
in its review ahd recoIl1mendation, if approprjate, a determination of the wisdom of the proposed

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action (e.g., the OGC may have no legal objection but may recommend denial because the value
ofthe proposal is outweighed by the intrusion into legithnate privacy interests). The aGe's
determination that an investigative activhy is: (i) not legally objectionable; and (ii) warranted
from a mission standpoint is based on'facts known at the time of the review and recommendation.
Often these facts are not verified or otherwise corrooorated until the investigative activity
commences. As a result, the OGC may require additIonal OGC reviews or provide gl,lidaryce to
supervisory personnel wIth regard to monitoring the results of the investigative activity to ensure
that the authorized purpose and/or factual predication remains in tact after the facts are
developed.
.
(U//FOUO) For those investigative activities involving a sensitive investigative matter requiring
OGe review, the OOC must independently consider the factors articulated in the DIOG and
provide the approving authority with a recommendation as to whether, in the OGC's judgment,
the investigative activity should be approved.
(U//FOUO) Throughout the DIOG, any requirement imposed on the General Counsel may be
delegated and performed by a designated OGC attorney. All delegations must be made in-writing
and retained appropriately;

3;7.

(U) Corporat¢ Policy Offic'e' Roles a'ndRcsponsibilities

(UI/FOUO) Subject to the guidance of the Deputy Director, the CPO has oversight of the
implementation of the DIOG. In the process of implementing and analyzing the DIOG, the CPO
should report any. apparent compliance risk areas directly to the OlC. Additionally, the CPO fill
work directly with the OlC to ensure that the policies, training a11d monitoring are adequate to
meet compliarice monitoring procedures.

3.8.

(U) Office oflnteg'rity and Compliance Roles and Responsibilities

(UI/FOUO) OIC is responsible for reviewing the DIOG, and working with each FBI Div.ision
and the CPO, to identify compliance risk areas and ensure the adequacy of'policy statements,
training and monitoring. When complia,nce risk areas are identified, the OlC works with the
Divisio~s,Field Offices, and/or programs affected by the risk and develops programs to review
the adequacy ofpolicy sta:temerits, training, and monitoring and mitigates those concerns
appropriately.

3.9.

(U) Operational Program Manager Roles and Responsibilities

(UI/FOUO) FBIHQ Operation Program Managers must review notices and ac~ions received from
FBI Field Offices pursuant to procedur~s containe4 in the applicable FBIHQ substantive
Division's policy implementation guide. This responsibility includes notifyingthe,appropriate
DOJ entity of FBI Field Office and FBIHQ investigative activities, witllin th.e time period
specified by the AGG-Dom, when required.
(U//FOUO) FBlHQ Operational Program Managers are responsible for identifying, prioritizing,
imd analyzing potential compliance risks within their programs regarding implementation bfthe
DIOG, and developing mitigation plans wl1ere warranted.
(UI/FOUO) Operational Program Managers ,must proactively identify and take appropriate action
to resolve. potential compliance concerns. In identifying possible compliance concerns, Progra~
Managers should consider the following indicators of possible compliance issues:

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A. (U/IFOUO) Similar activities being handled differently from Squad-to-Squad / Unit-to-Unit /
Field Office-to-Field Office;
.
B. (UJ/FOUO) Unusually qigh need for contact with Headquarters' Division for basi~
information on how to conduct an activity;
C. (U//FOUO) Apparent confusion over how to conduct a certain activity;
D. (UI/FOUO) Conflicting 'policy;

E. (u/iFoUO) Non-existentlinaccurate/wrongly target,ed training;

F. (U/IFOUO) Monitoring mechanisms that do not exist or do not test the right information (e.g.
file reviews/program management); and

"

. G. (UlIFOUO) Ina,dequate audit for compliance.
(U/IFOUO) Operational Program Manager~ may not retaliate or take adverse action against
persons who raise compliance concerns.

3.10. (U) Division Compliance Officer Roles and Responsibilities
(UlIFOUO) Each FBIHQ Division and "Field Offic;e must have a Division Compliance Officer
,(DGO)-who~willproactively identify potential-non-compliancerisk areas concerning the

implementation of the DIOG and .report them to the proper authority anq the OlC. The DCO
must always be aware that the focus of a compliance program is the identification and resolution
ofa compliance problem and the process must not be punitive or retaliatory.

3.11. (U) FBI Headquarters Approval Levels
(U/IFOUO) If a DIOG provision does not specifically provide, or prohibit, FBIHQ approval
authority for conducting certain investigative activities or investigative methods, the below Field
Office approval authorities equate-to the following FBIHQ personnel and approving officials
when FBIHQ initiates, conducts, or closes an investigative activity or utilizes an investigative
method:
.
•

(U/IFOUO) Field Office Analyst or Special Agent (SA)::;:: FBIHQ Analyst, SA, or
Supervisory Special Agent (SSA);

•

(UI/FOUO) Field Office Supervisory Intelligence Analysts (SIA) = FBIHQSIA; .

•

(U//FOUO) Chief Division Counsel (CDC) =FBIHQ Office of the General Counsel
(OGC);

•

(U/IFOUO) Field Office SS.A = FBlHQ Uriit Chief (UC); and

•

(U//FOUO) Special Agent in. Charge (SAC) = FBIHQ Section <;hief (SC).

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4. (U) Privacy and Civil Liberties, and I;ieast Intrusive Methods
4.1.

(U) Civil Liberties and Privacy

A. (U) Overview
(U}The FBI is responsible for protecting the American public, not only from crime and
te.rrorism, but also from'incursions into their constitutional ,rights. Accordingly, all'AGODom investigative activities must be carried out with'full adherence to the Constitution,
federal laws and the principles of civil liberty and privacy.
(U) The FBI has a long-established commitment to protecting the civil liberties of Americans
as it investigates threats to national security and publIc safety. As discussed below,
compliance with the FBI's comprehensive-infrastructute of legal limitations, oversight and .
self-regulation effectively ensures that this commitment is honored. Because our ~bility to
achieve our mission requires that we have the trust and confidence of the American public,
and because that trust and confidence can be significantly'shaken by our failure to respect the
limits of our power, special care'must be taken by all employees to comply witl1 these
limitations.

"R (U) Purp'ose of Investigative ACtivity
({)) One of the most important-safeguards in the AGG-Dom~ne that is intended to ensure
that FBI employees respect the constitutional rights of Americans-is the threshold
requirement that all investigative activity be conducted for an authorized purpose. Under the
AGG-Dom that authorized purpose must bean authorized national security, criminal, or
foreign intelligence collection purpose.
(U) Simply stating such a purpose is not sufficient, ho\\,ever,.to ensure compliance with this'
safeguard. It is critical that the authorized purpose not be, or appear to be, arbitrary or
contrived; that it be well-founded and well-documented; and that the infonnation sought·and
the investigative method used to obtain it befocu~ed in scope, time, and manner to achieve
the underlying purpose. Furthennore, there are constitutional provisions that set limits on
what that purpose may be. It may not be solely to monitor the exercise of rights that are
protected by the Constitution, and, equally important, the authorized purpose may not be
based solely on race, et~nicity, national origin or religion.

(U) It is important to understand how the "authorized purpose" requirement and these
constitutional limitations relate to one another. For example, individuals or groups who
communicate with each other or with member1? of the public in any form in pursuit of social
.or political causes-such as opposing war or foreign policy, protesting government actions,
promoting certain religious beliefs-have a fundamental constitutional right to do so. No
investigative activity may be conducted for the sole. purpose of monitoring the exercise of
these rights. If, however, there exists a weil-founded basis to conduct investigative activity
for one of the authorized purposes listed above-and that basis is not solely the race,
ethnicity, national origin or religion of the participants-FBI employees may assess or
investigate these activities, subject'to other limitations in the AGG-Dom and the mOG. In
this situation, the investigative activity would not be based solely on Constitutionallyprotected conduct or on race, ethnicity,nationality or religion. Fina]ly, alth9ugh investigative
activity would be authorized in this situation, it is important that it be conducted in a manner
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that does not materially interfere with the ability of the individuals or groups to engage in the
exercise of Constitutlonatly-protected rights.
C. (U)

Oversi~ht

and Self-Regulation

(U) Provisions'ofthe AGG-Dom, other AGG, and oversight from DOJcomponents are
designed to ensure the activities of the FBI are lawful, appropriate and ethical as well as
effective in protecting the civil liberties and privacy of individuals in the United~States. DOJ
and the·FBI's Inspection Division, OlC, and OGC, along with every FBI employee, share
responsi~i1ityforensuring that the FBI meets these goa,ls.
(~) In the criminal investigation arena, oversightofFBI- activities has traditionally come
from prosecutors and district courts. Because many national security investigations do not
'resultin prosecutions, other oversight mechanisms are necessary. Various features of the
AGG-Dom facilitate the DOJ NSD oversight functions in the national security and foreign
-intelligence collection areas. Relevant requirements and provisioI'!s include: (i) required
notification by the FBI to the DOJ NSD concerning a full investigation that involves foreign
·intelligence collection, a full investigation of a United States person in relation to a threat to
the national security; or a national security investigation involving a "sensitive investigative .
m~tfer;" (ii) an annual report. by the FBI to the D0J NSD concerning the FBI's foreign
. intefligericecollect!on program,inClu.dinginformationref1ec~ingthe scop~'and nature of
foreign intelligence collection activities in each FBI Field Office; (iii) access by the DOJ
NSD to' information obtained by the FBI through national security or foreign intelligence
activities; and (iv) general authority for the Assistant Attorney General for National Security
to'obtain'r~portS from the FBI 90nceming these activities. (AGG-Dom, IntroA.C)

(U) The DOJ NSD's Oversight Section and the FBI's QGe are.responsiOle for conducting
regular reviews of all aspeetsofFBI national security and foreign intelligence activities.
These reviews, conducted at PBI Field Offices andFBIHQ Divisions, broadly examine such
activities for compliance witJ't'the AGG-Dom and other applicable requirements.

(U) Further ex.amples of oversight mechanisms include the involvement of both FBI and
pro~ecutorial personnel in the review of undercover operations involving sensitive

circumstances; noti.ce requirements for investigations involving sensitive investigative
matters; ~nd notice and oversight provisions for enterprise investigations, which involve. a
broad examination of groups implicated in criminal and national security threats. These
requirements and proceQures help to ensure that the rule oflaw is respected.in the FBI's
activities andth~t public confidence is maintained in these activities. (AGG-Qom, Intro.4.C)
(U) In addition to the above-mentioned oversight entities DOJhas in:place, the FBI is subject
to a regime of oversight, legal' limitations, and self-regulation designed to ensure ~trict
adherence to civi,l liberties. This regime is comprehensive and has many facets, including the
following:
1. (U) The Foreign Intelligence:Surveillance Act of 1978, as amended, and Title III of the
Omnibus and Streets Act of1968. These laws establish the processes for obtaining
judicial approval of: electronic.surveillance and physical searches for the purposes of
collecting foreign intelligence and electronic surveillance for the purpose of collecting
evidence of crimes.

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2. (U) The WhistleblQwer Protection Acts of 1989 mid 1998: Thes_e laws protect
whistleblowers from retaliation.
3. (U) The Freedom of Infonnation Act of 1966: The law provides the pUblic with access
to FBI documents hot·covered by a specific statutOry exemption.
4. (U) The Privacy Act on 974: The purpose of the Privacy Act is to balance the
government's need to maintain infonnation about United States citizens apd legal
pennanent resident aliens with the rights of those individuals to be protected against
'unwarranted invasions of their privacy stemming from the government's collection, use,
maintenance, and dissemination, of that information. The Privacy Act forbids the FBI
and other federal agencies from collecting infonnatiqnabout how indivi~uals·ex.ercise
their First Amendment rights, unless that collection is expressly authorized by statute or
by the individual, or is pertinent to and within the scop~ of an authorized law
enforcement activity (5 U.S.C. § 552a[e][7]). Except for collection of foreign
intelligence, activities authorized by the AGG-Dom are authorized law enforcement
activities or activities for which there is otherwise statt.Jtory authority for purposes of
the Privacy Act. Foreign intelligence'collection is not an authorized law enforcement
activity..
(U)C0l1.gressional Oversight is conducted by-various c'ommiitees of the· United States ..
Congress, bilt primarily by the JiIdiciary and ·Intelligence Committees. These committees
exerc'ise regular, vigorous oversightinto all aspects of the FBI's operations. To this end, the
N~tional Security Act of 1947 requires the FBI to keep the .intelligence committees (for the
Senate and House of Representatives) fully and cU!1"ently infonned of substantial intelligence
activities. This oversight has significantly increased in breadth and intensity since the 1970's,
and it provides important additional assurance that the FBI conducts its investigations
according to the law and the Constitution.
(U) The rBI's counterin~elligenceand counterterrorism operations are subjecUb significant
self-regulation and oversight beyond that conducted by Congress. The Intelligence Oversight
Board (1013), comprised of members from the President's Intelligence, Advisory Board
(PIAB), also conducts oversight of the FBI. Among its other responsibilities, the lOB'
reviews violations of The Constitution, national security law, E.O.. qr Presidential Decision
Directive(PDD) by the FBI and the other intelligence agencies, and issues reports thereon.to
the President and the Attorney General.
(\J).Internal FBI safeguards include: (i) the OGC's Privacy and Civil Liberties Unit (PCLU),
which reviews plans of any record system proposed within the FBI for compliance with the
Privacy Act and related privacy' protection requirements and policies; '(ii) the,criminal and
national'security undercover operations review.committees, compriseg of senior DOJ and
FBI officials, which.review all proposed undercover operations that involve sensitive
c
.
circumstances; iii the Sensitive 0 erations Review Committee S

(iv) all FBI employees have an, obligation to report violatiops of the DIOG
to their supervisor, other management offi.cials,or appropriate authorities; and (v) the FBI
requirement for training oJ new FBI employees and periodicltraining for all FBI employees

L-'""'--_---,_ _
.......

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to. maintlin currency on the latest guidelines, changes to laws and regulations, and judicial
decisions related to constitutional rights and liberties.
(D) The AGG-Dom and mOG set forth the standards and requirements under which an
. investigative a«tivity may be initiated and are designed to provide FBI employees with a
, framework that maintains the proper balance between the public's need for effective law
. enforcement and protection of the national ~ec).lrity and the protec~i9n of civil liberties ~nd
privacy. Among the provisions that specifically serve to protect civil liberties and privacy are
the following: (i) the prohibition against initiating investigations based solely on the exercise
of First Amendment rights .or other constitutionally protected activity; (ii) the ryquirement
that FBI employees use the least intrusive method reasonable under the circumstances to
achieve their investigative goals; a.nd (iii) the pr9hibition against engaging in ethnic and
racial profiling. Further, in the context-of collecting foreign intelligence, the FBI is further
·required to operate openly and consensually with United States persons; to the extent
practicable.
4.~.

(U) Protection of First Amendment Rights

(U) A fundamental principle of the Attorney General's guidelines for FBI investigations and

operations since the. first guidelines were issued in 1976 has been that investigativ.e activity may
not be based solelY. oil the exerCise of rights guaranteed-by the First Amendment to the United
States Constitution. This principle carries through to the present day in the AGO-Dam. There is a
corollary to this principle in the Privacy Act of 1974, 5 U.S.C. § 552a, which prohibits the
retention of information describing how a person exercises rights under the First Amendment,
unless there is a valid law enforcement purpose.
(0) The First Amendment sta~es:
(U) Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof; or abridging the freedom ofspeech, or of
the press; or ofthe right ofthe people to peaceably assemble, and to pet(tion
the Go.vernmentfor redres.s ofgriel!ances.

(U) Although the amendment appears literally to apply only to Congress, the Supreme Court
made it clear long ago that it also appliesto activities of the Executive Branch, including law
enforcement agencies. Therefore, for FBI purposes, it would be helpful to read the introduction
to the first sentence as: "The FBI shall take no action respecting ..." In addition, the word
"abridging" must be understood. ~'Abridging," as used here, means "diminishing." Thus, it is not
necessary for a law enforcement action to destroy or totally undermine the exercise of First
Amendment rights for it to be unconstitutional; significantly diminishing or lessening the ability
of individuals to exercise these rights without an authorized investigative purpose is sufficient.
(l) This is not to say that any diminishmeDt of First Amendment rights is i.m~onstitutional. The
Supreme Court has never held that the exercise of these rights is absolute. In fact, the Court has
syt forth realistic interpretations ofwhat level and kind of govemrpent activity actually violates a
First AI!Iendment right. For example, taken to an extreme, one could argue that the mere
possibility of an FBI agent being present at an open forum (or an qn-line presence) would
diminish the right of free speech by, for example, an anti-war protestor because he/she would be
afraid to speak freely., The Supreme Court, however, has n.ever found an "abridgement" ofFirst
Amendment rights based on such a subjective fear. Rather, it requires an action that, from an

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objective perspective, truly diminishes-the speaker's message or his/her ability to deliver it (e.g.,
pulling the plug on the sound system). -for anotherexample, requiring protestors to use a certain
parade route may diminish, in a practical sense, delivery of their message. The Court has made it
clear, however, that for legitimate reasons (e.g., public safety), th~ government may impose
reasonable limitations in terms of time; place and manner to the exercise of such rights----:-'as long
as the ability to deliver the message remains.
(U) While the l~nguage of the First Amendment prohibits action that would abridg~ the enumerated rights, the i.mplementation of that prohibItion in the AGG-Dom reflects the Supreme
Court's opinions on the constitutionality of law enforcement action that may impact the exer<,:ise
of First Amendment rights. As. stated above, the A9G-Dom prohibits investigative activity for
the sole purpose of monitoring the exercise of First A~endment rights. The import of the
distinction between this language and the actual text of the First Amendment language is twofold: (i) the line drawn bythe AGG-Dom prohibits even "monitoring" the exercise of First
Amendmcnt rights (far short of abridging those rights) as the sole purpose of FBI activity; and (ii)
the requirement of an authorized purpose for all in~estigative activity provides-additional
protection for the exercise of Constitutionally protected rights.
(U) The AGG-Dom classifies investigative activity that involves a religious or politic.al
organiz?tiolJ. (or all ir:tdivigual p~oll1in~'lt in such~ll organizaj:iQIl) gr 11l11ember of the new~
media as a "sensitive investigative matter." That designation recognizes the sensitivity of
conduct that traditionaliy involves the exercise of-First Amendment rights-Le., groups who
associate for political or religious purposes, and the press~ The requireme:nts for opening and
pursuing a "sensitive investigative matter" are s'et forth in Section 10 of this policy document. It
should be clear, however, from the discussion below just how pervasive the exercise of First
Amendment rights is in American life and that not all protected First Amendment activity will
fall within the definition of a "sensitive investigative matter.." Therefore, it is essential that FBI
employees recognize when investigative activity may have an impact on the exercise of these
fundamental rights and be e~pecially sure that any such investigative activity has avalid law
enforcement or national security purpose, even if it is not a "sensitive investigative matter" as
defined
the AGG-Dom and .the DIOG.
' in
.
(U) Finally; it is Important to note that United States persons (and organizations comprised of
United States persons) do not forfeit their First Amendment rights simply because they als6
engage in criminal activity or in conduct that threatens national security. For example, an
organization .suspected of engaging in acts of domestic terrorism may also pursue legitimate
political goals and may al.so engage in lawful means to achieve those goals. The pursuit of these
goals through constitutional}y-protected conduct doe~ not insulate them from legitimate
investigative focus for unlawful'activities-but the goals ~mdthe pJ.lrsuit ofthe.if goals through
lawful means remain protected from unconstitutional infringement.
.
(U) When allegations of First Amendment violations are brought to a court of law, it is usually in
the form pf a civil suit in which a plaintiff has to prove some actual or potential harm.
Presbyterian·Church.v. United States, 870 F.2d 518 (9th Cir. 1989). In a criminal trial, a
defendant-rna) seek either or both of two remedies as part of a claim that his or her First
Amendment rights were violated: suppression of evidence gathered in the alleged First
Amendment violation, a Claim typically analyzed under the "reasonableness" clause of the
Fourth Amendment, and dismissal oftbe indictment on the'basis of "outrageous government
conduct" in violation of the Due Process Clause of the Fifth Amendment.

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(U) The scope of each of the primary First Am~ndment rights and their impact on FBI

investigative activity are discussed below. The First Amendment's "establishment clause,"-the
prohibition against the government estab1i~hing or sponsoring a specific religion-has little
applicatioIJ to the FBI ang, therefore, is not discu~sed here.

A. (U) Free Speech

.

(U) The exercise offree speech includes far more than simply speaking on a controversial

topic in the town square. It iricludes such activities as carrying placards in a parade, sending
letters to a newspaper editor, posting a web site on the Internet, wearing a tee'shirt with a
politicai message, placing'a bumper sticker critical ofthe President on one's car, and
publishing books or articles. The common thread in'these examples is conveying a public
message or an idea through words or deeds. Law enforcement activity that diminishes a
person's ability to communicate in any of these ways may interfere wjth his or her freedom
of speech-and thus may not be undertaken by the FBI solely for that purpose. .

CU) The line between constitutionally protected speech and advocacy ofviplence or of
conduct that may lead to violence or other unlawful activity must be understood. Tn
Brandenburg v. Ohio, 395 U.S. 444 (1.969), the Supreme Court established a two-part test to
determine whether such speech is constitutionally protected: the government may not
prohibit advocacy"offorce or violence except when stich-advocacy"(i)i'sintendedto 'incite
imminent I~wless action, and (ii) is 'likely to do so. Therefore, even heated rhetoric or
offensive provocation thatcould conceivably lead to a violent response in the future is
usually'protected. Suppos~, for example, apolitically active group advocates on its web site
taking unspecified "action" against persons or entities it views as the enemy, who thereafter
suffer property damage and/or personal injury. Under the Branderiburg two-part test, the
missing specificity and im~ine'nce in the message may provide it constitutional protection.
Forthai'r~ason, law enforcement may take no action that, in yffect, blocks the message or.
punishes its sponsors.
CU) Despite the high standard for prohibiting free speech or punishing those who engage in it,
the law does not preclude FBI ~mployees from observing and collecting any of the forms of
protected speech and considering its content-as long as those activities are done foT. a valid
law enforcement or national security purpose aM conducted in a mannel: that do~s not unduly
infringe upon the ability 'of the speaker to deliver 'his or her message. To be an al!thorized
purpose, it must be one that is authorized'by the AGG-Dom-Le., to further,an FBI
assessment, predicated investigation, or other authorized function such as providing
assistance to qther agencies. Furthermore, by following the "Standards for Initiating or
Approving an Assessment or Predicated Investigation" as contained in the mOG, the FBI
will ensure that there is a rational relationship between that authorized purpose and,the
protectedspeech such that a reasonable per~on with knowledge ofthe circumstances could
understand why the information is being ~ollected.
(U) Returning to the example posed above, because the group's advocacy of action could be
directly related by circumstance to property damage suffered by one of the group's known
targets, collecting the speech-although lawfully protected-ean lawfully occur. Similarly,
listening to the public talks by a religious leader, who is suspec;ted of raising fund_s for a
terrorist organjzation, may yield clues as to his motivation, plan of action, and/or hidden
messages to his followers. FBI employees sh~uld not, therefore, avoid collecting First

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Amendment protected speech if it is relevant to an authori?:ed AGG-Dom purpose-as long
as they do so in a manner that does not inhibit the delivery of the message or the ability of the
audience to hear it, and so long-as the method of collection is the-least intrusive means
feasible to gather the relevant information.

(0) In summary, during the course of lawful investigative activities, the FBI may lawfully
collect, retain, and consider the content of coostitutionally protected speech, so long as: (i)
the collection'is logically related to an authorized investigative purpose; (ii) the-collection
does not actually infringe on the ability of the speaker to deliver his or her message; and (iii)
the method of collection is the least intrusive alternative feasible.

B. CD) Exercise of Religi~n"
(U) Like the other First Amendment freedoms, the "free exercise of religion" clause is
broader than commonly believed. First, it covers any form of worship of a deity---even forms
that are commonly understood to b~ cults or fringe sects, as weI I as the right not to worship'
any deity. Second, protected religious exercise also extends to dress or food that is required
by religious edict, attendance at a facility used for religious practice (no matter now unlikely
it appears to be intended for that purpose), observance of the "Sabbath, raising mqney for
evangelical or lJlis~ionary purposes, and proseiytiziOg. Even in controlled environments like
prisons, religious exerCise mtistbeperrriitted~subject to reasonable restrictions as to time,
place, and manner. Another feature-ofthis First Amendment right is that it is a matter of
heightened sensitivity to some Americans-especially to devout followers. For this reason, it
is a matter that is more likely to provoke an adverse reaction, if the right is violatedregardless ofwhich religion is involved. Therefore, when essential investigative activity may
impact this right, it must be conducted in a manner that avoids "the actual-and the
appearance of-interference with religious practi<;e to the maximum extent possible.

CD) While there must-be an authorized purpose for any investigative activity that could have
an impact on religious practice, this does not mean religious practitioners or religious"
facilities are completely free from being examIned as part of an assessment or predicated
investigation. If such practitioners are involved in-or such faci Iities are used for-activities
that are the proper subject of Fl;3I-authorized -investigative or intelligence collection activities,
their religious affiliation does riot "immunize" them to any degree from these efforts. It is
paramount, however, that the authorized purpose of such efforts be properly documented. It
is also important that investigative activity directed at religious leaders or at conduct
occurring within religious facilities be focused in time and manner so as not to infringe on
legitimate religious practice by any individual but especially by those who appear
unconnected to the activities under investigation.
(D) Furthermore, FBI employees may take appropriate cognizance of the rqle religion may
play:in the membership or motivation of a crimin~l or terrorism enterprise. If, for example,
.
affiliation with a certain religious institution or a specific religious sect is a known
requirement for inclusion in a violent organization that is the subject of an investigation, then
whether a person of interest is a member of that institution or sect,is a rationa~ and
permissible consideratiQn. Similarly, if investigative experience and reliable intelligence
reveal that members of a terrorist or criminal organization are known to cO!T1monly possess
or exhibit a combination of religion-based characteristics or practices (e.g., group leaders
state that acts of terrorism are based in religious doctrine), it is rational and lawful to consider

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such a combination in gathering intelligence about the group-even if anyone of these, by
itself, would constitute an impermissible cOl1sIderatlon. By contrast, solely because prior
subjects of an. investigation of a particular group were members of a certain religion and they .
claimed a religious motivation for their acts of crime or terrorism, other members' mere
.
affiliation with that religion, by itself, is not a basis to assess or investigate-absent a known
and direct connection to the threat under assessment or investigation. Finally, the absence of
a particular'religious affiliation can be used by analysts and investigators to eliminate certain·,
individuais from further investigative.consideration in those scenarios where religious
affiliation· is relevant.
.
.
C.. (D) Freedom of the Press
(D) Contrary to what many believe;this well-known First Amendment right is not owned by
the news media; it is a right of the American people. The drafters of the Constitution believed
that a free'press was essential to preserving democracy. Although th~ news media typically
seeks to enforce this right, freedom of the press should.not be viewed as a comest betWeen
law enforcement or national security, on the one hand, and the ~nterests of news media, on
the other.
(U) Freedom ofthepress includes su~h matters as rea~onable access to news-making'events,
the making of documentaries; and the posting of"blogs;;' The news gathering function is the
aspect of freedom ofthe press most likely to intersect with law enforcement and national
security investigative activities. Within that category, the in.terest of the news media in
protecting confidential source~ and the interest of agencies li~e the FBI in gaining access to
these sources who may have evidence ofa crime or national security intelligence often clash.
The s~minal case in·this an~a is Branzbtirg v. Hayes, 408 U.S. 665 (1977), in·which the
Supreme Court held that freedom of the pres~ does not entitle a news reporter to refuse to
divulgethe identity of his source to. a fedi:ral grandjury. The Court. reasoned that, as long as
the purpose of law enforcement is not harassment or vindictiveness against the press, any
harm to the news gathedng function qfthepress (by revealing'source identity) is outweighed
by the need of t~e grand jury to gather evidence of crime..
(D) Partially in response to Branzburg, the Attorney General has, issued regulations that
govern the issuance of subpoenas for reporter's testimony and telephone toll records, the
arrest of a repqrter for a crime related to news gathering, and, the interview of a reporter as a
suspect in a crime arising from the news gathering process. In addition, an investigation of a
member of the news media in his official capacity, the use of a reporter as a source, aild
posing as a member of the news media are'all sensitive circumstances in the AGG-Dom and .
other applicable AG guidelines.
.(U) These regulations are'not intended to insulate reporters and other news media from FBI
assessments or predicated investigations. They are intended to ensure that investigatIve
activity that seeks information from or otherwise.involves members of the news media: is
appropriately authorized; is necessary for an important law enforcement br national'security
objective; is the least intrusive mea~s to obtain the information or achieve the goals; and does
not unduly infringe upon the news gathering aspect of the constitutional right to freedom of
the press.

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D. (D)-Freedom of Peaceful Assembly and to Petition the Government for Redress of
Grievances .
(D) Freedom ofpeaceful assembly, often called the right to freedom of association, present
unique issues for law enforcement agencies, including the FBI. Individuals who gather wit.h
others to protest government action, or to raiIy or demonstrate in favor of,'or in oppositi9n to,
a.social cause sometimes present a threat to public sa(ety either!?y their numbers, by their
actions, by the anticipated response to their message, or by creating an opportunity for'
individuals or other groups with an unlawful purpose to infiltrate and compromise the
legitimacy.ofthe group for their own ends. The right to peaceful assembly includes more
than just public demonstrations-it includes, as well, the posting of group web ~ites on the
Internet, recruiting others.to a cause, marketing a message, and fund raising. All are protected
First Amendment activities if they an,: conducted in support of the organization or politiCal,
religious or sociai cause.
(D) The right to petition the government for redress ofgrievances is so linked to peaceful
assembly and association that it is included in this discussion. A distinction between the two
is. that an inpividual may exercise the right to petition the government by himself whereas
ass~!TIbly nece~sarily iIJ,v()lves o~her~. The right to.petition thegovemmentincludes writing
letters to Congress, carrying a placard outside city hall that delivers a political message,
r~cruiting others to one's cause, and lobbying Congress or an executive agency f9r a
particular result.

eD) For the FBI, covert pres~nce or ac~ion within.associations, also called "undisclosed
participation," has the greatest'potential to impact this Constitutional right. The Supreme
Court addressed this issue as a result Of civil litigation arising from one of the many prot~sts
against the Vietnam Wa.r. In Laird v, Tatum, 408 U.~. 1 (1972), the Courtfoundthat the
mere existence of an investigative program.:..-consisting of covert physical surveillance' in·
public areas, infiltra.tion 9fpublic assemblies by government operatives or sources, and the
collection of news articles and other publicly available information-for the purpose of
determining the existence and scope of a domestic threa~ to national security does not, by
.itself, violate the First Amendment rights of the members of the assemblies. The subjective
"chill" to the right to assembly, based on the suspected presence of government operatives,
did not by itst::lf give rise to legal "standing" to ·arguc.thartheir constitutional rights had been
abridged..Instead, the Court required a showing that the complained-of government action·
would reasonably deter the exercise of that right.
(U) Since Laird v. Tatum·was decided, the lower courts have exariIimjd.government activity
on many occasions to determine whether it gave rise to a "subjective chill" or an "objective
deterrent." The basic standing'requirement establish by Laird remains unchanged today. The
lower courts,.however,.have often imposed a very low threshold of objective hannto survive
dismissalofthe case. For example, plaintiffs who have shown a los~ of membership in an
organization, loss offin;mcial support, loss to reputation and status in the community, and
loss of~mployment by members have been granted standing to sue.

(U) More significant for the FBItl1an the standing issue has been the lower courts? evaluation
of il1vestigative actiVIty into First A~endment protected. associations since Laird. The courts
have beld the'following investi.gative activities to be constitutionally permissible under First
Am~iJ.dment analysis: .undercover participation in group activities; physic;al and video

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surveillance in public areas; properly authorized electronic surveillance; recruitment and·
operation of sources; collection of infonnation from government, public, and private sourccs
(with consent); and the dissemination of information for a valid law enforcement purpose.
However, these decisions were not. reached in the abstract. In every case in which the courts
have found government acti,on to be proper, the government proved that it was conducted for
an authorized law enforcement or nation~l security purpose and that it was conducted in
substantial compliance whh controlling regulations: In addition, in approving,these
techniques, the courts have often considered whether a less intrusive technique was available
to the agency, and the courts have balanced the degree of intrusi()n or impact against the
'importance of the law enforcement or national security objective..
(U) By contrast, since Laird, the courts have found these techniques to qe legally
objectionable: initiating an investigation solely on the basis of the groups' social or political
agenda (even 'if the agenda made the group susceptible to subversive infiitration); sabotaging
or neutralizing the group's legitimate social or political agenda; disparaging the group's
reputation,or ~tanding; leading the group into criminal activity that otherwise probably would
not have occurred; and undermining legitimate recruiting or funding efforts. In every such
case, the court found the governmenf.s purpose either was not persuasive, was too remote, or
wasfoo speculative to Justify the intrusion and the potential harm to the exercise of First .
Amendment rights.
(U) <;)nce again, the message is clear that investigative activity that involves assemblies or
associations of United States persons exercising their First Amendment rights must have an
authorized purpose under the AGG-Dorn-and one to which the information sought and the
technique to. be employed are rationally related. Less intrusive techniques sh.ould always be
explored first and those authorizing such activity (which, as discussed above, will almost
always constitute a sensitive investigative matter) should ensure that the investigatjve activity
,is focused as narrowly as feasible and that the purpose is th9roughly documented.

4.3.

(U) Equal Protection under the Law

A. (U) Introduction
(U) The Equal Protection Clause of the, United States Constitution provides in part that: "No,
State shall make or enforce any law which shall ... deny to any person withi~ its jurisdiction
the equal protection of the laws." The Supreme Court and the lower courts 'have made it clear
that it applies as well to the official acts of United States government law enforcement
agents. Specifically, government employees are prohibited from engaging in invidious
'discrimination against individuals on the basis of race, ethnicity, h.ational origin, or religious
affiliation. This principle is further reflected and iJllplemented for federal law' enforcement in
the. United States Department of Justice's Guidance Regarding the Use o(Race bv Federal
.
Law Enforcement Agencies (hereinafter "pOJ Guidance:').
(U) The DOJ Guidance states,that investigative and intelligence collection activities must not
be based solely on race, ethnicity, national origin, or religious affiliation. Any such activities
that are based 'solely on such considerations are invidious by definition, therefore,
1

See, e,g., Whren v. United States, 517 U.S. 806 (1996); see also Chavez v. IIIi~ois State Police, 251

F.3d 612 (7th Cir. 2001).

'

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unconstitutional. This standard applies to all investigative and collection activity, including
collecting and retaining information, opening cases, disseminating inforrrtation, and indicting
and prosecuting defendat).ts. It is particularly,applicable tq the retention and dissemination of
personally i~enti:fying information about an individual-as further illustrated in the examples
enumerated below.
(U) The constitutjonal prohibition against invidious discJ;irriinati()n based on race, ethnicity,
national origin or religion is.relevant to both the·national security and criminal investigative
programs of the FBI. National security investigations often have ethnic aspects; members of
a foreign terrorist organization may be primarily or exclusively from a particu(ar country or
area o(the world. Similarly, ethnic heritage is frequently the common thread running through.
violent gangs or other criminal organizations. It should be· noted that this is neither a new nor
isolated phenomenon. Ethnic commonality among criminai and terrorist groups has been
relatively. constant and widespread across many ethnicities throughout the history or"the FBI.

B. (U) Policy Principles
(U) To ensure. that assessment and investigative activities and' strategies consider racial,
. ethnic, nationaL origin and r¢ligi9us fllctors propt<rly and·effectively·and to help assur~ the
Arperican public that the FBI does not engage in invidious ,Hscri'Iriination, the followirig
policy pririciples are established.
1. (U) The prohiQition against investigative activity based solely on race or ethnicity is not
avoided by considering it in combination with other prohibited factors. For example, a
.
person of a certain race engaging in lawful public speech about his religious
convictions is not a proper subject of investigative activity based sotely ~m anyone of
these factors-or by the combination of all three. Before collecting and using this
inform~tion, a well-founded and authorized investigative purpose must exist as to
which any or all ofthese otherwise prohibited factors is relevant:
2. (U) When race or ethnicity is a relevant factor to consider, .it should not be the
dOJI1inant or primary .factor. Adhererice to this standard will n9t only ensure that it is
,never the sole factor-it will also preclude undue and unsound reliance on race or
ethnicity in investigaiive~nalysis. It reflects the recog~ition that there are tho\.!sands
and, in soqie cases, millions oflaw abiding people in American society of the same race
or ethnicity as those who are th~ subjects of FBI investigative activity, and it guards
against the risk of sweeping some of them into the net of su~picion without a sound
investigative basis.
3. (U) The FBI willnot collect or. use behavi()r or characteristics'common to particular
racial.or ethnic community as investigative factors unless they bear clear and specific
relevance to a matter under assessment or investigation. This policy is intended to
prevent the potential that collecting ethnic characteristics or behavior will inadvertently
lead to individual identification based solely on such matters, as well as to avoid the
appearance that the FBI is engaged in ethnic or ra~ial profiling.

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C. (U) Guidance on the Use of Race and Ethnic Identity in Assessments and Predicated
Investigations
(U) Considering the reality of common ethnicity or race .amqng many criminal and terrorist
groups, some question how the prohibition against racial or ethnic profiliqg is to be
effectively ,applied-al1d not violated-in FBI assessments and predicated investigations.
The question arises generally in two contex!s: (i) with respect to an individuaLor a group of
individuals; and (ii) with respect to ethnic'or racial communities as a ~hole.
:I. (U) Individual Race or Ethnicity as a Factor
(U) The DOl Guidance permits the consideration of ethnic anq racial identity information
based on specific reporting-such as from an eyewitness. As a general rule, race or '
ethnicity as an identifying feature of a suspected perpetrator, subject, and in some cases, a,
victim, is relevant if it is based on reliable evidence'.or information-not conjecture or
stereotyped assurription~. In addition, the DOJGuidance permits consideration of race or
ethnicity in other investigative or collection scenarios if it is relevant. Thyse examples
.
illustrate:
a. (U) The race or. ethnicity of suspected members, associates,. or supporters of an
ethnic-based gang or criminal enterprise may be collected and retained when
gathering information about or investigating the organization.
b. (U) E;thni~itymay be.considered in evaluating whether a subject is-or is not-a
'possible-associate of a criminal or terrorist group that is knowp. to be comprised of
members of the same ethnic grouping-":'as long as it is not the dominant factor for
focusing on a.particular person. It is axiomatic that there are many members of the
same ethnic group who are not members of the group; and for that reason, there must
be other information beyond race or ethnicity that links the individual to the terrorist ,
or criminal group or to the other members ofthe group. Otherwise, racial or ethnic
identity would be the sole criterion, and that is impermissible.
.
2. .(U) Community Race or Ethnicity as a Factor
a. (U) Collecting .and analyzing.demographics. The DOJ guidance and FBI policy
perinit the FBI to identify locations of concentrated ethnic. communities in the Field
Office's domain, if these locations will reasonably aid the analysis of potential threats'
and vulnerabilities, and, overall, assist domain awareness for the purpose of
performing iritelligence analysis. If, for example, intelligence reporting reveals that
members of certain terrorist organizations live and 9perate primarily within a certain
concentrated community of the same ethnicity, the location of that community is
clearly valuable-and properly collectible---data, Similarly, the· locations of ethnic- '
oriented businesses' arid other facilities m~y be collected if their locations will
reasonably contribute to an awareness·ofthr~atsand. vulnerabilities, and intelligence
collection opportunities. Also, members of some communities may be potential
victims of civil rights crimes and, for this reason, community location may aid

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enforc;ement of civil rights laws. Information about such communities should not be
collected, however, unless the communities are sufficiently concentrated and
established so as to provide a reasonable potential for intelligence collection that
would support FBI mission programs (e.g., where identified terrorist subjects from
certain countries may relocate to blend in and avoid detection).
lethnic/racial demol!raohics.1

I

b2
b7E

c. (D) General ethnic/racial behavior. The authority to collect ethnic community
location information does not extend to .the collection of cultural and behavioral
informatiqn about an ethnic community that bears no· rational relationship to a valid
investigative or analytical need. Every ethnic community in thy Nation that has been
associated with a criminal or n~tional security threat has a dominant majority. of lawabiding citizens, resident aliens, and visitors who may share common ethnic behavior
but who have no connection to crime or terrorism (as either subjects or victims). For
this reason, a broad~brush cOllection of racial or ethnic characteristics or behavior Is
not helpful to achieve any authorized FBI purpose and may create the appearance of
improper racial or ethnic profiling.
d. (D) Specific and relevant ethnic behavior. On the other hand, knowing the
behavioral and life style characteristics of known individuals·who are criminals or
who pose a threat to national security may logically aid in the detection and
prevention of crime and threats to the national security within the community and
beyond. Focused behavioral characteristics reasonably believed to be associated with
a particular criminal or terrorist element of an ethnic community (not with the
community as a whole) may be collected and retained. F.or example, if it is known
through intelligence analysis or otherwise that individuals' associated with an ethnicbased terrorist or criminal group conduct their finances by certain methods, ttavelin.a
certain manner, work in certain jobs, or come from a certain part of their home
country thafhas established links to terrorism, those are relevant factors to consider
when investigating the group or assessing whether it may have a presence within a,
community. It is recognized that the "fit" between specific behavioral characteristics
and it terrorist or critninalgroup'is unlikely to be perfect-that is, there will be
members of the group -.yho do not exhibit the behavioral criteria as well as persons
who exhibiphe behaviors who are not members of the group. Nevertheless, in order
to maximize EBI mission relevance and to minimize the appearance of racial or

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ethnic profiling, the criteria used to identifymell1ber~ ofthj~ group within the larger
ethnic ~ommunity to which they belong must be as focused and as narrow as
intelligence reporting and other circumstances permit. If int~lligence reportin'g is
insufficiently exa.ct so that it is reasonable to believe that the criteria will include an
unreasonable numb.er of people who are not involved, then it would·be inappropriate
to use the behaviors, standing;ilone, as the basis for FBI activity.
(U) Exploitive ethnic behavior. A related category of information that can' be collected
is behavioral and cultural information. about eth l1 ic or racial communities that is
reasonably likely to be exploited by criminal or terrorist groups who hide within those
communities.in order to engage in illicit activities undetected. For example, the existence
,of a cl;lltural tradition of collecting funds from members within the community tO'fund
charitable causes in their·homeland at a certain time of the year (and how that is
accomplished) would be relevant if intelligence reporting revealed that, unknown to
many donors, the charitable causes were fronts for terrorist organizations or that terrorist
supporters within the community intended to exploit the unwitting donors for their own
purposes.
4.4.

(lJ)Least Intri!~iv~;M~~hQt!

A. (U) Overview
(U) The AGG-Dom requires that the "least intrusive" .me~ns or method be considered
and-if operationally sound and effective-used to obtain intelligence or evidence in lieu
of a more intrusive method. This principle is also reflected in Executive Order 123"33,
which governs the activities of the United States intelligence-i::ommunity. The concept of
least intrusive method applies to the collection ohll intelligence and evidence. Regarding
the collection offoreign intelligence that is not collected as part· of the fBI's traditional
national security or criminal missjons, the'AGG-Dom provides that open and Qvert
collection activity must be used with United States persons if feasible.

(U) By emphasizing the !lse of the least intrusive means to obtain intelligence and evidence,
FBI employees can effectively execute their duties whiie mitigatirig potential negative
impacts on the privacy and civil liberties of all people encompassed within the
investigation, ihclud.ing targets, witnesses, and victir.ns. This principle is not intended to
discourage FBI employees from seeking relevant and necessary intelligence, information,
or evidence, but rather is intended to encourage investigators to choose the 'least intrusivebut still effective-!Jleans from the available optionsJo obtain the:material.
(U) This principle is embodied in statutes and DOJ policies on a variety of topics including
electronic surv:eillance, the iIse of tracking devices, the temporary detention of suspects,
and forfeiture. In addition, the concept ofleast intrusive method.can be found in case law
as a factor to be considered in assessing thereasonableness of an investigative method in
the face of a First Amendment or due process violation claim. See Clark v. Library of
Congress, 750 F.2d 89,94 (D.<;:. Cir 1984); Alliance to End Repression v. City of Chicago,
627 F. Supp. 1044, 1055 (N.D. Ill. 1985), citing Elrod v. Bums, 427 U.S. 347,362-3
(1976).

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B. (D) General Approach to Least Intrusive Method Concept
(U) Applying the concept of least intrusive method to an investigative or intelligence
collection scenario is both a logical process and ~n exercise in judgment. It is logical in the
sense that the FBI employee must first determine t~e relative intrusiveness of the method
that would provide information:
1. (U) Relevant to the assessment or predicated investigation;
2. (U) Within the time frame required by the assessment or predicated investigation;

'3. (LI) Consistent with operational security and the protection of sensitive sources and
methods; and,
4. (U) In a mariner that provides confidence in.the accuracy of the information.
(U) Determiqing the least iT!trusive method also reqlJires sound judgment because it is clear
that the factors discussed above are'not fixed points on a checklist They require careful
consideration based on a thorough understanding of investigative objectives and
circumstances.
C. (U) Determining Intrusiveness'
(U) lil determining intrusiveness, the primary factor should' be the degree of procedural
protection that established law and the AGG-Dom provide for the use of the method. Using
this factor; search warrants, wiretaps, and undercover operations are very intrusive. 'By
contrast, investigative methods with limited procedural requirements, such as checks of
government aqd commercial data bases and communication with established sources, are
less. intrusive.
.

(U) The following guidance isdesigried to assist FBI
intrusiveness of different methods:

p~rsonnel

injudging,.the relative·

1. (U) Nature of the information sought: Investigative objectiv.es·generally dictate the
type of illformation required and from whom. it shol.clld be collected. This subpart is not
intl;ln.ded to. address the situation where the type of information needed and its location
are,clear so that consideration of alternatives would be pointless. When the option
exists, however, to seek information from any of a variety of places, it is less intrusive
to seek informati<)D from less sensitive and less protected places. Similarly, obtaining
information thilt is protected by;a statutory scheme (e.g., financial records)'or an
evidentiary privilege (e.g., attorney/client communications) is more intrusive than
obtaining information that is not so protected. In addition, if there exists a reasonable
'expectation ofprivacy under the Fourth Amendment (i.e., private communications),
obtaining that information is more intrusive than obtaining information that is
knowingly exposed to public view as to which there is no reasonable expectation of
priva~y.

2. (U) Scope of the information sought: Collecting information regarding an isolated
event-such as a certain phone number called on a specific date or a single fillancial
transaction-is less intrusive or invasive of an individual's privacy than collecting a'
complete communications or financial"profile." Similarly, a complete credit history is
a more intrusive view into an individual's life than a few isolated cr~dit charges. In
some cases, a cOtpplete financial and credit profile is exactly what the investigatiQn

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requires (for example, investigations of terrorist financing or money laundering). Ifso,
FBI employees should not hesitate to use appropriate legal process to obtain such
information if the predicate requirements are satisfied. It is also recognized that
operatiop.al ~ecurity-such as source protection---'may dictate seeking a wider scope of
information than is absolutely neces~ary for the purpose of protecting a specific target
or source. When doing so, however, the concept 'of least intrusive alternative still
applies. The I:BI may obtain·more data than strictly needed, but it should obtain no
more data than is needed to accomplish the operational security goal.
3. (U) Scope of the use of the method: Using a method in a manner that captures a
greater picture of an individual's or a group's activities is more intrusive than using the
same method or a different one that is focused in time and locatio,n to a speCific
objective. For example, iUs less intrusive to use a tracking device to verify point-topoint travel than it is to use the same device to track an individual's movements over a
sustained period of time. Sustained tracking on public highways would be just as lawful
btit more intrusive because it captures a greater portion of an individual's daily
movements. Similarly, surveillance by closed circuit televisiof!. that checks a: discrete
lQ.cation within a discrete time frame is less intrusive than 24/7 coverage of a wider area.
For another .example, a computer intrusion device that captures only host computer
'identification information is faflcss 'iiltrusive than one that capttiresfile conteht.
4. (U}Source of the information'sought: It is less intrusive to obtain iqformation from
existing government sources (such as state, local, tribal, international, or federal
partners) or from publicly-available data-in commercial data bases, than to obtain the
same inform~tion from a third party (usually through 'legal proce,ss) that has l,l,'
confidential relationship with the subject-such as a financial or academic institution.
Similarly, obtaining information from a reliable confidential source who-is lawfully in
possession of the informat~on and lawfully entitled to disclose it (sl!ch as obtaining an
address from an employee of a local utility company) is less-intrusive than"obtalning
the information from an entity with a.confidential relationship with the subject. It is
recognized "in this category that the accuracy and procedural reliability of the
information sought is an important factor in choosing the source of the information. For
example, even if the information is available from a confidentiill source, a grand jury
subpoena, ·national'security .letter (NSL), ex parte order, or other process !!lay be
required in order to ensure informational integrity. "
5. (U) The risk of public exposure: ~eeking information about an individual or gro'up ,
under circumstances that create a risk that the contact itself and the.inforniation sought
will be exposed to the individuai's or group's detriment and/or embarrassment---'
particularly if the method used carries no legal obligation to maintain silence-is more
intrusive than information gathering that does not carry that risk. Interviews with
employers, neighbors, and associates, for example, or the issuance ofgrand jury
subpo'enasat a time when the investigation has not yet been pubIiciy exposed are more
intrusive than methods that gather information covertly. Similarly, interviews of a
subjectin a discrete location would be less intrusive than an interview at, for example, a
place of employment or other. location where the subject is known.
(U) There is a limit to the utility of this list of intrusiveness factors. Some factors may be
"inapplicable in a given Investigation and, in many cases, the choice and scope of the

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method will be dictated wholly by investigatiye objectiv~s and circumstances. The
foregoing is not intended to provide a comprehensive checklist or even ~n overall
continuum of intrusivene,ss. It is intended instead to identify the factors involved in a
determination of intrusiveness and to attune FBI employees to select, within each
applicable category, a less intrusive method if operational circumstances permit. In the end~
selecting the least intrusive method that will accomplish the objec~ive is. a matter of sound
judgment. In exercising suchjudginent, however, consideration of these factors sh<;lUld
ensure that the decision to proceed is well founded.

D. (0) Standard for Balancing Intrusion and Investigative Requirements
(U) Once an appropriate method and its deployment have been. determined, reviewing and
approving authorities should balance the level of intrusiori against investigative
requirements. This balancing test'is paitic\,llarly important when the information sought
involves clearly established constitutional, statutory, or evidentiary rights or sensitive
circumstances (such as oQtaining information from religious. or academic institutions or
public fora where First Amendment rights are being exercised), but should be applied in all
circur1).stances to ensure that the least intrusive alternativ~ feasible is being utilized.
(U) Balancing the factors discussed above with the considerations discu~sed below will
help determinewh'ether themethbdand the extent towhich'it'iritrud~sinto privacy or
threatens civillibertie.s is proportionate to t~e significance of the case and .the information
sought.
(U) Considerations on the .investigative side of th.e balancing scale include the:
1. (U) Seriousness of the crime or national security tjlre~t;
2. (U) Strength I;lnd significance of the intelligence/information to

b~

gained;,.

3. (U) Amount of information already known about the subject or group under
investigation; and
4. (U).Requirements of operational security, including protection of sources and methods.
(U) If, fot example, tp.e threat is remote, the individual's involvement is speculative, and the
. probability of obtaining probative information is low, intrusive methods may not be
justified, i.e., they may do more harm than good. At the other end of the scale, if the threat
is significant and possibly imminent (e.g., a bomb threat), aggressive measures would be
.
appropriate regardless of intru.siveness.
(U) In addition, with respect to the investigation of a group, if the terrorist or criminal
nature of the group and its membership is well establisheci (e.g., al Qaeda, Ku Klux Klan,
Colombo Family of La Cosa Nostra), there is less concern that pure First Amendment
activity is at stake than there would be for a group whose true character is not yet known
(e.g., an Islamic charity suspected of terrorist funding) or many of whose members appear
,to be solely exercising First Amendment rights (anti-war prote$tors suspected of being
infiltrated by violent anarchists). This is not to suggest that Investigators should be less
aggressive in determining thC# true nature of an unknown group, which may be engaged in
terrorism or other violent crime. Indeed, a more aggressive and timely approach may be in
order to determine whether the group is violent or to eliminate it as a threat. Nevertheless,
when First Amendment rights are at stake, the cqoice and-use of investigative methods'

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should be focused in a manner that minimizes potential infringement of those rights.
Finally, as the investigation progresses and the subject's or group's involvement becomes
clear, more intrusive methods may be justified. Conversely, if reliable information emerges
refuting the individual's involvement or the group's criminal or terrorism connections, the
use of any investigative methods must be carefully ev.aluated. .
(U) Another consideration.to be balanced is operational security. Is it likely that if a less
intrusive but feasible method were selected, the subject would detect its. use and alter his
activities-including his means of communication-to thwart the success of the operation.
Operational security-particularly in national security investigations-should not be
undervalued and may, by itself, justify covert tactics which;.under other circumstances,
would not be the least intrusive.
E. (U) Conclusion
(U) The foregoing guidance is offered to assist FBI employees in navigating the often
unclear course to select the least intrusive investigative method that"effectively
accomplishes the operational objective at hand. In the final analysis, t~e choice of method
and balancing ofthe impact on privacy and civil liberties with operational needs is a matter
ofjudgment, baseq on training .and experience. Pursuant to the AGG-Dom, other applicable
laws andpoliCies, and' this 'guidance; FBI employees may use any· lawful-method, allowed,
even if intrusive, wh~re the intrusiveness is warranted by the threat to the national security
or to potential victims of crime and/or the streng~h of the information indicating its
existence.

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5. (U) Assessments
5.1.

(U) Overview

(UIIFOUO) The Attorney General's GuidelinesjorDomestic FBI Operations (AQG-Dom)
combine "threat assessments" under the former Attorney General's GUidelinesjor FBI National
~ Security Investigations and Fore[gn Intelligence Collection and the "prompt and extremely
limited checking out of initial leads" under the former Attorney General's Guidelines on General
Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations into ~ new
investigative category entitled "assessments." All assessments must either be openedJn an
investi ative classification as an assessment file e.
• laced in a'''---'''''
e. .
Guardian]), or placed

b2
b7E

(UIIFOUO) Note: In the DIOG, the word "assessment" has two distinct meanings.. The AGGDom authorizes as an investigative activity an "assessment" which requires an authorized
purpose as discussed in this section of the DIOG. The USIC, however, also uses the word
"assessment" to describe written intelligence products, as discussed in DIOG Section 15.7.B.

·(U)Assessments authorized undertheAGG-Dom do not require a particular factual-predIcation
but do require an authorized purpose. Assessments may be carried out to detect, obtain
information about, or prevent or protect against federal crimes or threats to the national security
or to collect foreigri intelligence. (AGG-Dom, Part II and Part II.A)
(UIIFOUO) Although "no particular fac.tual predication" is reguired, the basis of an assessment
cannot be arbitrary or groundless specul~tion, nor can an assessment be. based. solely on the
exercise of First Amendment protected activities or on the race, ethnicity, national' origin or
religion of the subject. Although difficult to define, "no particular factual predication" is less
than '~information or allegation" as required for the initiation of a preliminary investigation. For
example, a~ assessment may be conducted when there is a basis to know: (i) whether more
information or facts fire required to determine if there is a criminal or national security threat;
and (li) there is a rational' and articulable relationship between the stated authorized purpose of
the assessment on the one hand and the information sought and the proposed means to obtain that
information on the other, Regardless of whether specific approval or specific documentation is
required, an FBI employee should be able to explain the purpose of an assessment and the reason
for the methods used to conduct the assessment. Those FIE employees who conduct assessments
'areresponsible for assuring that assessments are not pursued for frivolous or improper purposes
and are not based sorely on First Amendment activity or on the race, ethniCity, national origin, or
religion of the subject of the assessment. (AGG-Dom, Part II)

(U//FOUb) An FBI.employee can search historical information already contained 'within: (i) FBI
data systems; (ii) United States Intclli .erice Communi USIC s stem
.
-em 10 ee has access e. ..
L-:-o-o:--~=_--:,_--:,_....,... _ _..¥;.(iii) any other United States Government database to
which an FBI employee has access; and (iv) the FBI employee can also conduct open-source
Internet searches without initiating an assessment (open-source Internet searches do not include
any paid-for-service databases such as Lexis-Nexis and Choicepoint), as further discussed in
Section 5.6.A.l aQd Section 15. The use of such paid-for-service databases requires the initiation.
Qf an assessment or predicated investigation. This allows the FBI employee to possibly resolve a

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matter without the need to conduct new investigative activity and'open an assessment.
Additionally, through analysis of existing information, the FBI employee may produce products
that include, but are not limited to. an Intelligence Assessment, Intelligence Bulletin and
Ilf, 'while conducting analysis; the FBI employee finds a gap
in intelligence that is relevant to an authorized FBi activity, the FBI employee can identify the
gap for possible 1eVelOPlJlent of a "collection requirement." The applicable I
I
(or otherl
_. las dire<:ted in the DI.PG) mu~t be used to
document this analysis. See the Directorate of bltelligence COl) PO for file classification
guidance.
.

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.

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_

5,2.

(U)Purpose and Scope'

(U/IFOUO) The F~I cannot be content to wait for leads to com~ in through the actions of others;
father, we must be vigilant in detecting criminal or national security threats to the full extent
permitted by law, with an eye towards early intervention and preventIon of criminal or national
security incidents before they occur. For example, to carry out its central mission of protecting
the national security, the FBI must proactively collect information from available sources in
order to identify threats aJ}~ activities and to inform appropriate intelligence analysis. Collection
require~ to inform such analysis will appear as FBI National Collection Requirements and FBI
Fieid-Office-Gollectfon-Requlrements; -Likewise, in theexercis~ ofits protective-functions; the
FBI is not constrained to wait until information is received indicating that a particular event,
activity or facility has drawn the attention of would-be perpetrators of terrorism, The proactive
authority conveyed to the FBI is designed.for, and may be .used by, the FBI in the discharge of
these responsibilities. The FBI may also conduct assessments as part of its special events
maQagement responsibilities. (AGO-Dom, P.art II)
(U) More broadly, detecting and interrupting criminal activities at their, early stages, ~nd·
preventing crimes from occurring in the first place, is preferable to allowing criminal plots to
come to fruition. Henge, ~ssessments may also:be undertaken proactively with such objectives as
detecting criminal activities; obtaining information on indiv'iduals, groups, or organizations of
possible investigative interest, either because they may be involved in criminal or national
security-threatening activities or because they may be targeted 'for ~ttack or victimization in such
activities;. and identifying and assessing individuals who may have value ~s confidential human
sources. (AOG-Dom, Part.II):
.
(UlIFOUO)"As described in the below-scenarios, assessments may beus~d when an "allegation
or information" or an "articulable factual basis" (the predicates for predicated investigations)
concerning crimes or threats to the national 'security is obtained and the matter can be checked
out or resolved through the relatively non-intrusive methods authorized in assessments (u§e qf
least intrusive means). The checking of investigative leads in this manner can avoid the need 1'0
prqceed to more formal levels of investigative activity (pr~dicatedinvestigation), if the results of
an assessment indicate that·further investigation is not warranted. (AGG-Dom, Part II)
Hypothetical fact-pattern~ are discussed below:
'.
A. (UlIFOUO~
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(UlIFOUO)I
Jrhe FBI employee can analyze historical information ~lready
contained yitb iP : (i) FBI data systems; (ii) USIC systems to whIch FBi employees have
. . ~;_(iii) any other United-States Government
access (e.g
database to whi9h an FBI employee has access; and (iv) can conduct open-source Internet
searches without initiating an assessment. Open-source Internet searches do not include any
paid-for-service databases such as Lexis-Nexis and-Choicepoint.L
1

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5.3.

(U) Civil Liberties and Privacy

(U) The.pursuit of legitimate goals·withoudnfringing upon the exercise of constitutional
freedoms is a challenge that the FBI meets through the application of sound judgment and
discretion. In order to ensure that civil liberties are not undermined by the conduct of
assessments, every assessment under this subsection must have an authorized purpose and an
identified objective. The purpose and objective bfthe assessment must-be documented and
retained as described in this' section and in mOG Section 14.
(U) Even when an .authorized purpose is present, an assessin~nt could create the appear~ncethat
it is directed at or activated by constitutionally protected activity, race, ethnicity, national origin

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Domestic Investigations and Operations Guide
or religion-particularly under circumstances where the link to an authorized FBI mission is not
readily apparent. In these situations, it is-vitally important that the authorized purpose and the
underlying reasons for conducting the assessment and engaging in the propo~ed methods are well
documented.
(U) No investigative activity, including assessments, may be taken solely on the.basis of
activities that are protected by the First Amendment or on-the race, ethnicity, national origin or
religion of the sl.)bject. If an assessment touches on or is partially motivated by First Amendment
activities,race, ethnicity, national origin or religion, it is particularly important to identifY and
document the basis for the assessment with clarity.
(U/IFOUO) Example: Individuals or groups who communicate with each

other or with members of the public in any form in pursuit of social or
political causes-such as opposing war or foreign policy, protesting
government actions, promoting certain religious beliefs,championing
particular local, national, or international causes, or a change in government
through non-criininalmeans, and actively recruit others to join their causeshave a fundamental constitutional right to do so. An assessment may not be
initiated based solely on the exercise qf these First Amendment rights. If,
hOwever, a group exercising-its First Amendment rights ~lso t4reatens or
advocates vi()lence or destruction of property, an assessment would be
appropriate.
(U) The AGG-Dom'require that the "least intrusive" means or method be considered and:..:-if
operationally sound and effective-used>in lieu ofrrtore intrusive methods to obtain intelligence
andlor evidence. This principle is also reflected in Executive Order 12333, which governs the
activities of the USIC. Executive Order 12333 lays out the goals, directions, duties and
responsibilities of the USIC. The concept of least intrusive means applies to the collection of all
.intelligence and evidence, not just that collected by those aspects of the FBI that are part of the
.
intelligence complUnity.
(U) By empha~izing the use of the least intrusive means to obtain intelligence and/or eviden~e,
FBI employees can effectively execute their duties while mitigating the potential negative impact
on the privacy and,civil ljb~rties and the d'amage to the reputation of all people encompassed
within the investigation or assessment, including targets, witnesses, and vi9tims. T.his principle is
hot intended to discourage FBI employees from seeking relevant and necessary intelligence,
information, or evidence, but rather is intended to encourage FBI employees to choose the least
intrusive-but still effective -means from_ the available options,to obtain the information.
(AGG-Dom, Part LC.2)
5.4.

(U) Authorized Purposes (AGG-Dom, Part II.A.2.-Authorized Activities)

A. (U) Assessment Activities: During an assessment, the FBI may:
1. .(U) Seek information, proactively or in response to lnvestigative leads, relatirig.to
activities constituting violations offederal criminal law or threats to the national security;
2. (U) Seek inforJT!ation, proactively or in response to investigative leads, relating to the
involvelllent or roie of individuals, groups, or organizations relating to activities
constituting violations offederal criminal law or threats to the national security;

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3. (U) Identify and obtain information about potential targets of or vulnerabilities to
criminal activities in violation of federall~w or threats to the national security;

4. (U) Obtain information to inform or facilitate i.ntelligence analysis and planning (AGG-

Dom, Part'IV);
5. (U) Seek information to identify potential human sources, assess the suitability,
.
credibility, or value of individuals as human sources, validate human sources, or maintain
the cover or credibility ofhum~n sources, who may 'be able 'to provide or obtain
information relating to criminal activities in violation of federal law, threats to the
national security, or matters of foreign intelligence interest; and
6. (U) Seek infoIinati9n, proactively or in response'to investigative leads, relating to matters
of foreign intelligence interest responsive to 'foreign intelligence requirements. '
5.5.

(U//FOUO) Standards ,for Initiating'or Approving an Assessment

(UIIFOUO) Before initiating or approving ail assessment, an FBI. employee or approving official
must determine whether:
A. (U/IFOUO) An authorized purpose and objective exists for the conduct ofthe assessment;

B. (U/IFOUO) The assessment is based on factors otlier than the exercise·of'First Amendment
activities or the.race, ethnicity, nati<,mal origin or religion of the subject; and
C. (U/IFOUO)The assessment is an appropriate lise of persoqnel and financi~l resources.

(U) Duration, Approval, Notice, Documentation,·File Review and,~esporisible
Entity

5.6.

(U//FOUO) FBIHQ and FBI Field Offices have the authority to conduct all assessment activities
,as authorized in Section 5.4. Field Office personnel and approving officials, C!s specifieci in the,
DrOG Section 5.6.A.1-6"equate to the following FBlHQ personnel and approving officials when
FBIHQ initiates, conducts, or closes an a~sessment:
•

(UI/FOUO) Fiel~ Office Analyst or Special Agent (SA) = FBIHQ Analyst, SA, or
Supervisory Special Agent (SSA);

.' (UI/FOUO) Field Office Supervisory Intelligence Analysts (SIA) = FBIHQ SIA;
•

(U//FOUO) Chief Division Counsel (CDC) = FBIHQ Office of the General Counsei
(OGC);

•

(U//FOUO) Field Office SSA = FBIHQ Unit Chief (UC); an~

•

(U/IFOUO) Special Agent in Charge (SAC) = FBIHQ Section Chief (SC).

A. (UI/FODO) Duration, Approval, Notice, Documentation, File Review and Responsible
Entity: An FBI employee must document on the FD-71 or in Guardian the use of or the
request and approval for the use of authorized investigative methods·in type 1 and 2
assessments (see DrOG Section 5.6.A.I and 2, below). By exception, certain assessment type
1 and 2 situations may require the use of an electronic communication (EC) to document the
use and approval ofparticuiar investigative methods. All type 3,4, and 6 (see DIOG Section
5.6.A.3.4. and 6, below) assessments and authorized investigative methods requiring

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supervisory approval must use an EC to document the approval of the assessment and the
r~quest and approval for the use of alJ. applicabie investi~ative method.
(UI/FOUO) For type 5 assessment act'ivities, an FBI employee must follow the duration,
approval, and other requiret:nents speCified in the FBI's. Confidential Human Source Policy.
Manual (CHSPM), Confidential j'luman Source Validation Standards Manual (CHSVSM),
. i the Use () FBI Con idential Hlllnan
and The AUorne General's Guidelines
Sources (AGG-CHS), as implemented i
All type 5 assessment activities under this
provision must be documented i
unless otherwise directed i,n the Ol PG orother
FBIHQ Divisio.n PGs. Ifthere is any inconsistency between the CHSPM or CHSVSM and
the OlOG, the DIOG controls and aGC should be immediately notified ofthe conflict.

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(U//FOUO) Listed below are the applicable duration, documentation, justiflcationlfiie review,
approval level; and responsible entity for each type ofassessment, describ.ed in'DIOG
'
Section 5.4 above.

1. (U//FOUO) Seek information, proactively or in response,to investigative leads,
relating to activiti~ constituting violations of federal criminal law or threats to the
natioIl~rsecurity· (e.~., the prompt checkin~ of leads on individuals or activity).
(U//F0DO) Duration: There is no time requirem~ntfor this type of assessment, but it is
anticipated that such assessments will be relatively short. These assessments require
.
recurring 30-day justification reviews by the SSA orSIA as discussed below.

I

(U//FOUQ) Documentation: Guardian wiH be used fori

. ,

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Guardian I .

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. (UI/FOUO) Approval: An FBI employee,may initiate an assessment under this
subsection without supervisory approval~
.

Ian FD-71 or Guar~

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or Guardian. The initiation date for this type of assessment is the date the SSA or SIA
assigns an FBI employee to conduct the assessment.
(U//FOUO)'As soon as practicable following the determination that this type of
assessment inv6lves a sensitive investigative marter, the matter mu~t be brought to the
CDC for review and'to the SAC for approval to continue the assessment. The term
I
"sensitiye.investigative matter" is defined in Section 5~ 7 and Section 10J
Ithe FD-71 or Guardian I
•I
L....,-,-..."..._...IlH~_ilgher

supervisory approval, as described III Section 5.9, may be reqUIred
before using one or more of the following investigativ~methods: physical surveiilance,
certain interviews, and tasking of-confidential huma:n sources. In addition, as specified in
the Division policy implementation guides (PG), there are agreements (e.g., Memoranda

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of Agreements/Uriderstanding, Treati~s) that may require particular coordination pri 9r to
the release/acquisition of federal, state, local, tribal, and foreign govemment infofrtiation.
(UIIFOUO) Justification Review: If this type of assessment is not concluded within 30
days, the SSA or SIA must conduct recurring ;JO-day justification reviews in accordance
with Section 3.4. Thisjtistification review must:

a. (VI/FOUO) Evaluate the progress made toward achieving the authorized purpose and
objective;
b. (UIIFOUO) Ensure activities that occurred during the prior 30 days were appropriate;
c. (U/IFOUO) Determine whether it is reasonably likely that information wmbe
obtained that is relevantto the authorized objective, thereby warranting aJ.1 extension
for another 30-days;
d. (U/IFOU0) Determine whether adequate predication has been developed to justify
opening a criminal, counterterrorism, counterintel!igence, cyber, or weapons of mass
destruction predicated investigation; and'
e. (UIIFOUO)Determine whether the assessment should be terminated.,

d:

(UIIFOUOYThe FBI employee must-ensure·tha:t1·
. -.
, ..
~n the FD-71 Qr Guardian. The completed FD-71 or u~rdian
requires supervisory approval before being uploaded. The FD,.71 or Guardian must also
document supervisory approval for the use of any investigative method,that requires
approval, such as: physical surveillance; certain interviews; or tasking of cOQfidential
, human sources (see OlOG Section 5.9)~ In addition, as specified in the Division PG; there
~re agreements (e.g., Memoranda of Agreements/Understanding, Treaties) that may
require particular coordination prior to ~herelease/acquisition of federal, state, local,

I

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classification as described in Section 5.14.
(UIIFOUO) Responsible Entity: This type Of assessment is conducted by the appropriate
,substantive Field'Office Squad.
.
.

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access, he/she can also. review already existing data contained in any United States
Government data system and search open source inform~tion on the illternetl·
'I
I.
. . I Open-source Internet searches do,not include any paid·;for.,
service databases such as Lexis-Nexis and' Choice oint· .
,
1ft ese
L....:-~--:---:-------:---~--;---:--.;....--;;---;-_-::-'
database checks or open source Internet searches do not reveal' any derogatory
.information, the FBI employee may te~jp.ate this activity without ~pening an assessment
or documenting these activi~ies on an FD-71.
(VIIFOVO)I
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Iarid complete an t'V-/1 •.

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2. (U/IFOVO) Seek information, proactively or in response to investigative leads,
relating to the involvement or role of individuals, groups, or organizations in
activities constituting violations of fe~eral criminal law or threats to the national
security (e.g.,'the prof!lpt checking,of leads on groups or org~nizations).
(VIIFOVO) Duration: There is no time requirement for this type of assessment, but it is
anticipated that such assessmepts will be relatively short. These assessments require
recurring 30-day justification reviews by the'SSA or SIA as discuss~d below. .
I

nT/IPOT rm

.

Documentation: Guardian I
,t

IThe electronic FD-71,1
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.

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'tiate an assessment under this
. ection without su ervisory approval·~w;u;..wJ.!:.!.!i~2£L~~~~~~~~---...

'--~:---;-:---::::-""""':--:-:__._ _ _:__"""""::_":""':"'--~-_-_ _:__-:--~-_:___::_::~ t e
or Guardian. Th~, initiation date for this type of assessment is the d~te the SSA or SIA
assign~ an FBI employee to conduct the assessment
'

(UI/FOUO) As soon as practicable following the determination that this type of
assessment involves a sensitive investigative matter, the matter must be brought to the .
CDC for review and to the SAC for approval to continue the assessment. The term
"sensitive investigative matter" is defined in Section 5.7 and Section 10. When
completing the FD-71 or Guardian lead for an assessment involving a sensitive

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I

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Higher supervisory approval, as described in Section 5.9 may be required before
L...-u"'si""n-g-o"'ne or more of the following investigative methods: physical surveillance, certain
interviews, and tasking of confidential human,sources. In addition, as specified in the
Division PGs, there are agreements (e.g., Memoranda of AgreementslUnderstanding,
Treaties) that may require particular coordination prior to the release/acquisition of
federal, state, local, tribal and foreign government information.
(U/IFOUO) Justification Review: If this type of assessment is not conclud~d within 30
days, the SSA or SIA must conduct recurring 30-day justification reviews in accordance
with Section 3.4. This justification review must:
a. _(U//FOUOYEvaluate the progress made toward achieving the authorized purpose and
objective;
b. (UI/F()UO) Ensure activities that occurreq during the prior 30 days were appropriate;
c. (U/IFOUO) Determine whether it is reasonably likely that iilformation will be
obtained that is relevant to the authorized objective, thereby warranting an extension
for another 30-days;
d: (UI/FOUO) DetermlJ;le whether adequate prediCation'has-beendevelopedto justify
opening-a criminal, counterterrorism, counterintelligence, cyber, or weapons of mass
. destruction predic~ted investigation; and
e. (UI/FOUO) Determine whet~er the asse~sment should be terminated.
(VI/FOUO) The FBl employee must ensure tha~
.
l .
in the FD-7IorGuardian. ;fhe completed FD-71 or duardian
requires supervisory approval before being uploaded. The FD-71 or Gliardian must also
document superVisory approval for the use 9f any investigative method that requires
approval;such as:.physical surveillance; certain interviews; or tasking of confidential
human ~ources (see Section 5.9). In addition, as specified in the Division pGs, there are
agreements (e.g., Memoranda ofAgreementsIUnderstanding, Treaties) th~t may require
particular coordination prior to the release/acquisition of federal, state,.local, tribal and
for~ign government information.

I _

..

I

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'-------

(U/IFOUO) Responsible Entity: This type of assessment is conducted by the appropr~ate
substantive Field Office Squad.
~u:..u..L'IJ1.LL.ll
----l.l_-:-~
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3.(U) Identify and,obtain information about potential targets ofor vulnerabilities to
criminal activities in violation of federal law or threats to the national security.
(U//FOUO) Assessments in this section may include activities designed to collect
information for domain analysis that is focused on identifying targets of or vulnerabilities
to criminal conduct or threats to the national security. FBIHQ·directed National Domain
Assessments must be coordinated in a~vance with the FBlHQ DI, Domain Management
Section (DMS):See theDlPG for details;
.
(U/IFOUO) This type of assessment l11ay not be used for the purpose of collecting
positive foreign intelligence,'although such intelligence may ·be incidentaIly collected
du~ing·this type ofassessrri.en~. Positive foreign intelligence can only be. collected
pursuant to Section 5.6.A.6 and Section 9. "

b2
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(U/IFOUO) Duration: An FBI ~mployee may initiate an assessment for this purpose only
with prior SSA or SIA approval. The effective date of the assessment is the date the
supervisor approves the EC. Such an assessment may continue for as long as necessary to
achieve its purpose and Ql;>jective. When the objective jlas been met, a closing EC must
be approved by the SSA or SIA and uploaded to the file.
(U/IFOUO) Documentation: The approval to in~tiate this type of assessment and the
rcq
'iwesti ative methods must be documented in an

(U/Il:0UO) Approval: All assessments conducted.pursuant to this subsection must e
approved in advance by an SSA or SIAand be" opened in either the appropriatel
or other
[as directed in the DI PG) or the
appropriate substantive investigative classIfIcatIOn as an· assessment file with an opening
EC.The title/case caption of the opening EC must contain the word'''Assessment,'' and
the synopsis must identify the purpose and the objective of the assessment. If at the time
of the opening; or at anytime tjlereafter, the assessment involves a sensitive investigative
matter,the title/case caption must contain the words "Assessment"·and "Sensitive .
Inyestigative Matter."
(UIIFOUO) File Review: This type otassessment requires recurring 90-day file reviews
ofthe assessment file and any sub-file by the SSA or SIA in accordance with Section 3.4.

I.

"I(

I.

..

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Investigative file reviews for probationary FBI employees are re(;ommended every 30
days but must be conducted at least every 60 days. This file review must:
a. (U//FOUO) Evaluate the progress made toward achieving the authorized purpose and
objective;
b. (U//FOUO) Determine whether it is reasonably likely that information will be
.obtained that is relevant to the ,authorized objective, thereby warranting an extension·
.for another 90 days (at least every 60 days for probation?ry FBI employees);
c. (U//FOUO) Determine whether atlequate predication has been developed to justify
opening a criminal, counterterrorism, counterintelligence, cyber, or weapons of mass
destruction predicated invcstigation; and .
d. (UI/FOUO) Determine whether the ~sessmentshould be terminated.
(UI/FOUO) An SSA or SIA may approve an assessment under this subsection in
accordance with the standards listed in the DIOG Section 5.5. However, if the assessment
involves a sensitive investigative matter, then the initiation requires prior CDC review
and SAC approyal. If a sensitive investigative matter arises after the initiation of an
assessment, investigative activity must'cease'until'CDC-review and SAC approvaTis .
acquired. The term "sensitive inv~stigative,matter" is defined in Section 5.7 and Section
lQ. Higher supervisory approval, as described· in Section 5.9, may be required prior to use
of the following investigative methods: physical surveillance, certain interviews, and
tasking of confidential human sources. In addition, as specified in-the Division PGs, there
are agreements (e.g., Memoranda of Agreeq1ents/Understanding, Treaties) th.at may
require particular coorqination prior to the release/acquisition of federal, state, local,
tribal and forc;:ign government information.
(U//FOUO) Any collection underta~en in order to identify threats, vulnerabilities, or
intell~gence gaps identified as a result of domain analysis or in response to an FBI
National Collection Requirement or FBI Field Office Collection Requirement must' be

ass:ss:",nHile

?fcording to the
addressed in a separate sUbsta::':: ::::~:'::tj6:
i~vestigative matter (e.gJ
p: Additionally, any
time an assessment begin'\; L U I % i c u ar m lvlual, a separate substantive. '
classification ass~ssment file or subfile, as appropriate, according to the investigative
matter must be opened on the individual.
(UI/FOUO) Responsible Entity: In general, the Field Intelligence Group (FIG) or
FBIHQ DI ~ill mana e this
e of assessm nt, regarrles: ofwhetber the 31'se s fnt is
or otherJ.........
·1 as
documented In an
directed in the DI
or a su stantlve Investigative classllcatlon file. This includes
substantive assess:ents de~:'v:: f~omlanalYSiSproduced and documented i9
(or other
as directed in the DIPG). Under the ml-a-n-ag-e-m-e-n"":'tof the FI6, substaiflve t'te rIce Squads can support the collection of information for
this type of assessment. However, substantive Field Office Squads or FBIHQ Units will
be responsible for initiating and managing particular kinds oftype 3 assessments. These
assessments will be documented in the appropriate substantiv~ investigative classification
file.
'

sm

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... .

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4. (UIIFOUO) Obtain information to inform odacilitate intelligence analysis and
planning. [AGG-Dom, Part'IY}
(UI/FOUO)' Assessments'in this section may include activities designed to collect

infonnation for domain analysis in order to respond to an FBI Natibmil Collection
'Requirement or FBI Field Office CollectIon Requirement created in response to FBI
operational neegs or an intelligence gap identified.through strategic analvsis that was
conducted as part of the FBI's national security or law"enforce~entresponsibilities, as
discussed· in Sections 5.11 and 5.12. FBIHQ directed NatIonal Domain Assessments must
be coordinated in advance with the FBIHQ DI, Domain Management Section (DMS). See
the DLPG for d~tails.
(U/IPOUO) This type of assessment may not be used for the purpose of collecting
positive foreign'intelligence, althqugh such intelligence may be incidentally coOected
during this type of assessment. Positive foreign intelligence can only be collected'
pursuant to Section 5.~.A.6 and Section 9.
(UI1P9UO) Duration: An FBI employee may initiate an ~ssessment for this purpose only

with prior SSA or SIA approval. The ~ffective date of the assessment 'is .the date the
supervisor approves the EC. Such an ass~ssment may ~ontinue for as long as necessary to
achieve its purpose and objective. When the objective has.been met, a closing BC must
be approved by the SSA or SIA and uploadeq. to the file.
(UIIFOUO) Documentation: The approval to initiate this type'ofassessment and the
request for approval to use applicable investigative methods must be documented'in an
EC. This type of assessment may be documented jn ejt~er t~e appr~priate
I '.
. or other
Jas dIrected III (he DI PG) or the
appropriate substantive 'investigative classification as~essrhent file.

k

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(U/IFOUO) File Review: This type of assessment requires re~urring 90-day file reviews
of the assessment fiie and any sub-file by the SSAor SIA in accordance with OlOG
Section 3.4. Investigative file reviews for probationary FBI employees are recommended
every 30 days but must be conducted at least every 60 days. This file review must:
a. (U//FOUO) Evaluate the progress made toward achieving the aU,thorized purpose anc:i
objective;
b. (U/IFOUO) Deter'Inine whether it i~ reasonably likely that info~ation will pe
.. "obtained thatis"relevantto the authorized objective, thereby warranting an extensiori
for'another 90 days (at least every 60 daysfor probationary FBI 'employees);
.
c. (U//FOUO) Determine whether adequate predication,has been developed to justify
opening a criminal, counterterrorism, counterintelligence, cyber, or weapons.of mass
destructionpredica~ed investigation; and
d. (UI/FOUO) Determine whether the assessment should be tenpinated.
(U//FOUO) An SSA orSIA may approve an.assessment tinder this sUQsection in
accordance' witli the standards listed in the mOG SectIon 5.5. However, if the assessment
involves a sensitive investiga:tiv~ matter, then the initiation requires prior CDC review
and SAC approval. If a sensitive' investigative .matter arises after the initiation of an
assessment, investigative activi~y must cease until CDC review and SAC appn;>Val is
acquired. The term "sensitive investigative matter?' is defined, in Section 5.7 andDiOG
Section 10. Higher supervisory approval, as, described in Section 5.9, may be required
. before using the following, inv.estig~tive methods: physical surveillance, certain
interViews, and tasking of confidential hl,lman sources. In addition, as specified in the
Division PGs,there are'agr~ements(e.g., Memoranda of Agreements/Understanding,
Treaties) that.may require particular cO"ordination prior to the release/acquisition of
fec:leral, state,.local, tribal and foreign government information.
(UlIFOUO) Any collection undertak~n in order to identify threats, vulnerabilities, or
intelligence gaps identif1ed as a result of domain analysis or in response to an FBI .
National Collection Requirement or FBI Field Office Collecti9n Requirement must be
addresse,din a separate substantive c1aSSitiC~iQn asseSfiment file a:[cording to the
inv~stigative matter (e.g.,l
"
~
_ Additionally, any
time an assessment begins to focus on apa_rtlc41ar individual, a separate substantive
classification assessment file or subfile, as,appropriate, according to the investigative
matter must be opened on the individual.

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(UI/FOUO) Responsible Entio/: The FIG or FBIHQ Dl will manage this tvpe of
assessmen re ardless ofwhe e the assessment is'documented in ani
(or
other .'
as directed in the DI PG) or a substantive investigative
classi IcatlOn lie. This includes substantive assessments derived from apalysis produced
(or other I
. ' Ias directed in the
and documented inl'
DI PG). Under the management of the Frd, substantive Field Office Squads c;an support .
the collection of information in this type of assessment
(UI/Foumi
..
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(UlIFOUOn

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5. ({)/IFOUQ) Seek inform~tion to identify pot~ntial human sources, assess the
suitability, credibility, or value of particular individuals as human source~, validate
human sources, or maintain the cover or credibility of human sources, who may be
able to pro~ide or obtain information relating to criminal activities in violation of
federal law, threats to the national security, or matters of foreign intelligence
interest.
(U//FOUO) Duration:AIl such activities must follow th~ polley requirements
establish~d in the FBI's Confidential Human Source Policy Manual (CHSPM),.
Confidential Human Source Validation Standards Manilal (CHSVSM), and The Attornev
General's Gitidelines Regarding the Use o(FBI Confidential Human Sources (AGGCHS), and implemented inl
I Ifthere'is any inconsistency between the CHSPM or

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CHSVSM and the DIOG, the DIOG controls and OGC should be immediately notified of
the co~flict.
(UI/POUO) Documentation:1
- Imust be used,to document all 'activities under this
prov!sion, unless otherwise directed in the Dl PG or other FBIHQ Division PGs. .
(UI/POUO) Approval: All approvals must fol!ow the policy requirements established in
the FBI'~ CHSPM, CHSVSM, and the AGG-CHS, and as implemented inl
~

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(U/IFOUO) File Review: File reviews must be conducted in accordance with the FBI's
CHSPM.
(U//FOUO) Responsible Entity: A FIG or substantive squad m~y conduct and manage
this type of assessment.

6. (UI/FOUO) Seek information, proactively or in response to investigative leads,
relating to matters of foreign intelligence interest responsive to foreign intelligence
requireme.nts.
(U//FOUQ) Foreign Intelligence is "information relating to the capabilities, intentions, or
activities of foreign governments or elements thereof, foreign organizations, or foreign
persons, or intemationa.1 terrorists." The FBI defines a foreign intelligtmc~ reql!irement to
bea collectionrequiremehtissuedby the United States Inte'Higence Community (USIC)
and accepted by the FBI pi. The collection of foreign intelligence pursu~nt to this
definition extends the sphere of the FBI's information-gathering activities beyond federal
crimes and threats to the nationa,1 security, and permits the FBI to seek information
regarding a broader range of matters relating to, foreign powers, organizations, or persons
that may be of interest to the ,conduct of the United States' foreign affairs. (AGG-Dom,
Introduction A.3)
(UI/FQUO) Under this authorized purpose, an FBI employee may only collect
information that relates to matters of positive foreign intelligence. (See 0 IOG Section 9
for a' description of'~positive foreign'intelligence.") An FBI employee. should prioritize
collection ,against FBI National Collection Requirements before attempting to collect
against a positive foreign intelligence requirement. The 01 PG furnishes guidance on the
prioritization of collection:
(UlIFOUO) Duration: An FBI employee may initiate an assessment for this purpose only
with-prior Field Office SSAor SIA approval and FBIHQ Co.llection Management Section
(CMS) approval. The effective date oftbe assessment is the date FBIHQ 'CMS approves
the. assessment. Such an assessment may continue for as long as necessary to achieve its
purpose and objectives. When the objective' has been met, a closing EC must be approved
by the Field Office SSA or SIAand FBIHQ CMS and uploadedt6 the file.
(U//FOUO) Documentation: This type ofassessment must use an EC to document the
initiation approval of the. assessment and the request and approval for the use of
applicable investigative methods. Fore~n intelligence collected rnlrs",o~lto this
_or as otherwise
subsection must be maintained in thelp~
determined by FBIHQ CMS. The or ~ further describes this process.
'
CUI/FOUO) Approval: Assessments to collect on matters of "foreign intelligence
interest" must be approved in advance by FBIHQ CMS in accordance with the standards

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lIn addition to the normal
I,.re.......
q IU""'lr:::'le~m~e:;:m:r·'r{(o~u~s::::e:-;trl:"::'hceTlle::a~s:+t":':m::;tr::u:::s:::iv-:::e:-:m=et;ih::::o~dj";t::o-;:g:::a';:ith::e::r::injformation during an assessment,
when conducting this type of assessment the FBI employee must be' mindful ofthe
additional requirement.to operate openly ~nd consensually.with a United States person, to
the extent practicable.
(U//FOUO) File Review: This type of assessment requires r~ctirring 90-day file reviews
of the assessment file and any sub-file by the SSA or SIA in accordance with Section 3.4.
Investigative file reviews for probationary FBI employ~es are recommended every 30
days but must be conducted at least every 60 days. This file review must:
a. (U/IFOUO) Evaluate the progress made toward achieVing the authorized purpose and
objective;
b. (U//FOUO) Determine whether~it is reasonably likely that information-will be
obtained that is relevanrto the authorized objective, thereby warranting· an extension
for another 90 days (at least every 60 days for prob~t~onary FBI employees);
c. (U//FODO) Determine whether adequate predication has been c)eveloped to justify
opening a criminal, counterterrorism, counterintelligence, cyber, or weapons of mass
destruction predicated investigation; and
d. (UI/FODO)' Determine whether the assessment should be terminated:
(V//FODO) Ifthe initiation of the assessment involves a·sensitiv.e investigative matter,·it
must be reviewed by the CDC and app~oved by-the SAC, priot to seeking FBIHQ CMS
a.uthorization. If a sensitive investigative matter arises after the initiation of an assessment,
investigative activity must cease until CDC review and SAC ·approval is acquired and
notice provided to FBIHQ CMS. Higher supervisory approval, as described in Section
5.9, may be required before using the following investigative methods: physical
surVeilla.nce, certain interviews, arid tasking of confidential h4man.sources. In addition,
as.specified inth~ Division POs, there are agreements (e.g., Memoranda of
..
AgreeinentslUnderstanding, Treaties) that may require particular coordination prior to the
release/acquisition of certain federal, state, local, tribal and foreign government
information.
(UliFOUO) Positive forei
suant to this subsection must be
maintained in
or as otherwise determined by
FBIHQ CMS. e ttt e case caption of the opening EC must contain. the word
"Assessment," and the synopsis must identify the purpose a~d the objective of the
assessment. Ifat the time of the opening, ot.at anytime thereafter, the assessment .
involves a' sensitive investigative matter, the title/case caption must contain the words
"Assessment" and "Sensitive Inyestigative Matter." the Dr PG further describes this
process.

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(UIIFOUO) Responsible Entity: This type of assessment is managed by the FIG and

FBlHQ D1.
5.7.

(U) Sensitive Investigative Matter I Academic Nexus I Buckley Amendment

A. (UlIFOUO) Sensitive Investigative Matter: An investigative matter involving the activities
of a domestic public offici~1 or political candidate (involving corruption or a threat to the
national.security), religious or political organization or individual prominent'in such an
organization, or news media, or any other matter which, in the judgment of the offic.ial
. authorIzing an investigation, should be brought to the attention of FBI Headquarters and
other DOJ officials. (AGG-DolJl, Part VILN.) As a matter of FBI policy, ''judgment'' means
that the decision of the authorizing'official is discretionary. DIOG Section 10 and the DIOG
"classifiedAnnendix G define!

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B. (UI/FOUO) Academic Nexus: I
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(UIIFOUO) The sensitivity related to an academic institution arises from the American
tradition of "academic freedom" (e.g., an atmosphere in which students and faculty are free
to express unorthodox ideas and views and to challenge conventional thought without fear of
repercussion). Academic freedom does not mean, however, that academic institutions are off
limits to FBI investigators in pursuit ofinformation or individuals of legitimate investigative
interest.

(UIIFOUO~

I'

.
!see .the DIOG classified AppendIx

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C. (UlIFOUO) Buckley Amendment: A request for "academic records" must only be made
pursuant to the provisions of the Buckley Amendment(Th~ Family Educational Rights and
Privacy Act of 1974, 20 U.S.C. § 1232[g], as amended by Public Law 107-56 ["USA
PATRIOT Act"]). An FBI employee is prohibited frOm receiving "academic records" that
have not been properly requested pursuant to the Buckley Amendment. The definition of
"academic records" is very broad and covers almost all records about a student other than
public, student directory-type information published by the institution. The Buckley
Amendment contains a penalty provision for those institutions that'im ro e
.
academic records to 1a

(UIIFOUO) A Buckley Amendment request for academic records cannot be made during an
assessment. In a predicated investigation, a request for academic records must be made
pursuant to the Buckley Amendment..

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(V//FOUD) Standards for Initiating or Approving the Use oran Authorized
Investigative Method

5.8.

(U//FOUO) Prior tQ initiating or approving the use of an authorized investigative method, an FBI
employee or approving official must determine whether:
A. (U//FOUO) The use of the particular investigative method is likely to further an objective of
the assessment;
B. (U//FOUO) The investigative method selected is the least intrusive method, reasonable under
the circumstances;
C. (UI/POUO) The anticipated value of the assessment justifies the ilse ofthe,selected
.
investigative method or methods;

D.

(UI/FOUO) If the purpose of the assessment is to collect positive foreign intelligence, the

investigative method complies with the AGG-Dom requirement tha~ the FBI operate openly
and consensually with a United States person, to the extent practicable; and.
E. (UI/FOUQ) The method is an appropriate usc ofpersoimel and financial resources.
5.9.

(U) Authorized Investigative Methods in Assessments and Predicated
Investi~a~iolls

(U) The following investigative methods· may be used· in ~ssessments- and predicated
investigations:
A. (D) Obtain publicly available information. (AGG-Dom, Pat:t II.A.4.a and Part VIT.L.).
1'. (D) Scope: "Public!y available irtfonnation" is infonnation that is:

a.. (D) Published or broadcast for public consumption;
b. (U).AvaiIable on request to the public;
c. (U) Accessible on-line or otherwise to the public;
d~

(D) Avai lable to the public by subscription or purchase;

e. (U) Made available at a meeting open to the public;
f.

(U) Obtai~ed by visiting any place or attending an event thafis open to the public;.or

g. (U) Could'be seen or heard by any casual observer not involving unconsented

. =

intrusion into private places.
(U/IFOUOll·

1 ..

.

J

.

2. (UI/FOUO) Approval: Supervisory approval is not required for use of this method~
except as to information gathered at' a religious service. Notwithstanding any other policy,
tasking a CHS or UCE to attend a religious service-during a predicated investigation,
whether open to the public or'not, requires SSA approval. Tasking a·CHS to attend a
religious service, whether open to the Ptlb\ic or not, during an assessm~nt requires SAC
approval.
.

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3. (U/fFOUO) Application: This investigative method may be used in assessrpents. national
security investigations~ criminal investigations. foreign intelligence collection cases~ and
for assistance to other agencies.
4. (U) UseIDissemination: The use or dissemination of information obtained by this
method must comply with the AGG':J:)om and mOG Section 14.
B. (U) Engage in observation or surveillance not requiring a co~rt order. Surveillance
includes physical, photographic· and video surveillance where such' surveillance does
not infringe on a reasonable expectation of privacy and trespass is not required to
accomplish the surVeillance. (AGG~Dom, Part II.A.4.h)
1. (V) Scope

a. (UifFOVO) Physical Surveillance Defined: Physical surveillance is the deliberate
observation by an FBI employee of persons, places, or events, on either. a limited or
continuous basis, .in a public or a-semi-public (e.g., commercial business open to the
public) $etting.
(V/fFOUO

,....;:..---r----'-----

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b. (UlIFOVO}SurveilIance E!1hancement.Devices: The use of mechanical devices
operated by the user (e.g., binoculars; hand-held cameras; radiation. chemical or .
biological detectors) is authorized in physical surveillance.provided that the device is
not used to collect infonnatic)O in which a person has a reasonable expectation of
privacy (e.g., equipment.such as a parabolic microphone or other listening device that
would intercept a private conversation or thermal imaging a home i's not permitted).
2..(UlIFOVO) Approval: During an assessment, physical surveillance may be approved for
a period of time not to exceedl
. . ~s explained further below.

. a. (U/IPOVO) St!lQdards for Initiating or Approving Physical Surveillance During
an Assessment: During ,an assessment,jn addition to the standards contained in
Sections 5.5 and 5.8, the FBI employee and supervisor must consider the follOWIng:

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(UI/FOUO) Whether the physical surveillance is rationally related to the
articulated pUrpose and objective of the assessment;

I.

ll.

CUI/FOVO) Whether the physical surveillance is the least intrusive alternative
. for acquiring needed information;

iii.

CUI/FODO) If the physical surveillance is for the purpose of determining a
pattern of activity, whether there.is a logical nexus between the purpose of the
assessment and the pattern of activity he or she is seeking to determine; and

'iv.

(U//FOUO) If being conducted jn order to gather positive foreign intelligence,
whether the surveillance is consistent with the requirement that the FBI
employee operate openly and consensually with a United States person, to the
extent practicable

b. CU//FOUO)I '

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e. (U//FOtJO) Physical Surveillance during Predicat~dJnvestigations:Physical
surveillance undertaken during a, predicated investigation does not re uire
supervisory approval
3. (U//FOUO)AppIication: This investigative method may be used in assessments, 'national
'security investigations, criminal investigations, foreign intelligence collection cases, and
for assistance to other agencies when it is pot otherwise ptohibite~,by AGG-Dom, Part
III.B.2-3.
4. (U) Use/Dissemination: The use or di~seminl:ltionof information obtained by this
"method must comply with the AGG-Dom and mOG Section 14.
C. (D) Access and examine FBI and other Department of Justice (QOJ) records, and
obtain information from any FBI or other D'OJ personnel.-(AGG-Dom, Part II.AA.b.)

1. (U//FOUO) Scope: As part of an assessment or predicated iIivestig~tion, an.FBI
employee may access and examine FBI and other DQl records and may obtain
information from any FBI personnel or other DOl personnel. Access to certain F13I
recorc:l.s may be restrictf:4 to l.i~signated EBIpersonnel because of the serisitiv-e nature.of
the information in the record or the classification of the records. These include, but are
not limited to: FBI records concerni~g human source identification; espionage
investigations; code word; and other compartmented information.
2. (U//FODO) l\pproval: Supervisory approval is not required to use this method, except
that ifthe use of records constitutes pattern-based data mining under the Feder~Lpata
Mining Reporting Act of 2007, it must be reviewed' and approved according to paragraph
3.below.
3. (D//FOUO) Pattern-Based Data Mining: The vast maJority of data analysis performed
during FBI assessments 'is bl,lsed on subjects or events and does not meet the definition of
pattern-based data mining. Pattern-based data mining is the use of one or more data bases
.to search for persons who fit a set of group characteristics or patterns of behavior (e.g.,
the known characteristics of a particular terrorist organization). Any such analysis baSed
solely on racial, ethnte, national origin or religious characteristics is strictly prohibited.
Sensitive Operations Review Committee (SORC) approval is required for any analytical
search of FBI or other agency data bases that constitute pattern-based data mining, as
defined above. Additionally, pursuant to the Federal Data Mining Reporting Act of2007,
the FBI must report all agency initiatives that involve the use ofpattern~based data
mining to Congress.

4. (U/IFOUO) Application: This investigative method may be used in assessments, national
security investigations, criminal investigations, foreign intelligence collection cases, and
fqr assistance to other agencies.
'
5. (0) Use/Dissemination: The use or dissemination of information obtained by this'
method must comply with the AGG-Do!l1 and mOG Section 14.

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D. (U) Access and examine records maintained by~ and request information from~ other
federal~ state~ ~ocal, or tribal, or foreign governmental entities or agencies. (AGG-Dom,
Part II.AAc.)

1. (U//FOUO) Scope: As part of an assessment or pr~dicated investigation, an FBI
employee may access 'and-examine records maintained by, and request information from,
other federal, state, local, or tribal, or foreign governmental entities or agencies: When
requesting information using this authority, care musfbe taken to ensure the entity
concerned understands that it is not'compelled to provide 'such information or create a
new record for the purpose of assisting the FBI.
2. (UlIFODO) Approval: Supervisory approval is not required to use this method for
','routine uses," unless. such approval is required by Memoranda of Understanding (MOU)
Of other agreements for requesting such informatioI),. The FBI may request another
federal age'ncy to disclose Privacy Act-protected records pursuant to the other agency's
\'routine uses" (5 U.S.C. § 522a[b][3]) or through a written request for a law enforcement
purpose (5 U.S.C. § 522a[b][7]). Such written requests (for a law enforcement purpose)
pursuant to 5 U.S.C. § 522a(b)(7} may be mad€? by the Djrector or his designee, provid(;ld
that such authority may not-be delegated :below the Section Chief level (28 C.F:R.
§ 16AO[c]; OMB Guidelines, 40 Fed. Reg. at 28,955). Requests for records or
inf9rmatioh from a foreign government entity or agency must be appropriately
c()ordinated through the applicable FBI Legat office, Office ofInternationaJ Operations
(010), INTJ;:RPOL, relevant,substantive headquarters division, and/or DOl Office of
.International Affairs, as necessary. Direct contact is authorized in certain circumstances,
such as an imminent threat situation. If the analysis of records obtained .in this manner'
constitutes pattern-based data mining tinder the Federal· Data Mining Reporting Act of
2007, it must be reviewed and approved according to Section.5.9.C.3, above.,
(U!/FODO)I

I

-\

_

.

te

(UIIFOUO) Records received from an outside entity and used during an asse'ssment must
maintained as part of the app~opriate file(e'$~l _
I

3. (UlIFODO) Application: This investigative ~ethod may be used in assessments, national
security investigations, criminal 'investigations, foreign intelligence collection cases, and
for a~sistance to other agencies.
4. (U) UselDissemination: The use and/or dissemination of information obtained by this
method must comply with the AGG-Dom and DlOG Section 14.
E. (D) Use online services and resources (~hethcr non-profit or ~ommercial). (AGO-Dom,
Part n.AA.d.)
-I. (UIIFOUO) Scope: As part of an assessment or predicated investigation, an FBI
eh1ploye~ may use any FBI-approved on-line service or resource that is available by
subscription or purchase, including services available only to law enforcement entities.

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2. (U//FOUO) Approval: Supervisory approval is not required to use this method, although
subscribing to or purchasing any new service or resource must be done according to FBI
contracting procedures:
(UIIFOUO) Example: FBI-approved on-line services or resources include, but are not
limited to: Google, Yahoo, or similar Internet search services; data brokers such as
ChoicePoint, Westlaw, and Lexis-Nexis; and vehicle, casualty, and property insurance
claims databases such as Claim-Search.
3. (U/IFOUO) Application: This investigative method'may be used in assessments, national
security investigations, criminal investigations, foreign intelligence collection cases, and
for assistance to other agencies.

4. (U) UselDissemination: The use. or dissemination of information obtained by this
method must comply with the AGG-Dom and mOG Section 14.
F. (U) Interview or request information from members of the public and private entities.
(AGG-Dom, Part ILAA.f)
1. (UI/FOUO) Scope: An interview is the questioning of an individual (to include the
. ,stibject) designed-to gatherinformation'frorrphe person beinginterviewedthads-accurate,
pertinent to, and within the scope of an authorized assessment or predicated investigation.
In the normal course of an interview, the FBI employee should divulge the employee's
affiliation with the FBI and the true purpose of the interview. Information requested
during an interview must be voluntarily provided. If the person who is being interviewed
expresses a desire not to provide the information, the FBI employee may not state or
imply in any way that the interviewee is compelled to provide information or that adverse
consequences may follow if the interviewee does not provide the information.lfthe
person being interviewed indicates he or she wishes to consult an attorney,Jhe jnterview
toust immediately stop.
2. (UI/FOUO) Custodial Interviews: Within the United States, Miranda warnings are
required to be given prior to custodial' interviews if the subject is significantly restricted
in hislher freec;iom of action to a degree normally associated with a formal arrest. For
more information refer to the CID and CTDPGs and The FBI Legal Handbook for
Special Agents (LHBS,A), Section 7~3"'2.
. 3. (UlIFOUO) Approval: With the exceptions discussed below, interviews do not require
supervisory approval.

a.

(UIIFOUO) Contact With Represented Persons:
(U//FOUO) CDC review is required before contact with represented persons. Such
contact may implicate legal restrictioJ1s and affect the admissibility of resulting
evidence. Hence, if an individual is known to be represented by counsel in a
particular matter, the CDC will follow applicable law and DOJ procedure when
reviewing the request to contact the represented individual in the absence of prior
notice to counsel. The SAC, CDC, or their designees, and the United States Attorney
or their designees must consult periodieaily on applicable law and DOJ procedure.
The Field Office may raise the following issues with the United States Attorney's
Office and request that it consult with the DOJ Professional Responsibility Advisory
Office, when the issues include, but are not limited to, the inconsistent application of:

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(i) state ethics rules; or (ii) rules for contacts with represented persons. (AGG-Dom,
Part V.B.!)
b. (U//FOUO) Members of the United States Congress and their Staffs:
(U//FOUO) Generally, FBI employee~ may-take information received from
congressional offices just I,lS they would take information from other. sources, and
they may act upon it accordingly.
(U//FOUO) However, prior CDC review, SAC and appropriate FBIHQ AD approval
and prior .notice to the AD Office of Con!!ressional Affairs mCA'I ~rp.
• • if an
investi2:ator seeks tor .
I
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----If"Note: The FBIHQ substantive Division policy implementation
guides may contain additional approval/notice requirements.

L....;..

c. (U//FOUO) White House Personnei:
(U//FOUO) CDCreview and SACapprovaLis requiredbefote injtiating contact with;
White House personnel. Additionally, CDC review; SAC approval and appropriate
FBIHQ Section.Chiefapproval must be obtained prior to conducting· an interview of a
member of the White Bouse staff. Note: The FBIHQ substantive Division policy
implementation guides may contain additional approval/notice requirements.
. d. (U) FBIHQ Substantive Division Requirements:
i.

(U//F9UO) Counterintelligence Division: Interviews conducted during
counterintelligence assessments and predicated investigations must comply
with the requirements contained in the, Memorandum of Understanding
Between the Department of State.and the FBI on Liaison for
..
Counterintelligence Investigations. The.FBIHQ Counterintelligence Division
PG contains interview'approval requirements.

ii.

CD//FOUO) Other FBIHQDivisions: Each FBIHQ Division may provide
additional interview approval requirements in its policy implementation guide.

4. CU//FOUO) Requesting Information Without Revealing FBI Am'iation or the True
Purpose of a Request:.

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vii. (U//FOUOlI
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viii.(U/IFOUO) I
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5. (U/IFOUO) Application: This investigative method may be used in ,assessments, national
security .investigations, criminal investigations, foreign intelligence collection cases, and
for assistance to other agencies when it is not otherwise prohibited by AGO-Dom, Part
'III.B.2~3.

6. (D) UseJDissemination: The use or dissemination of information obtained by this method
must comply with:the AOG-Dom and 0100 Section 14.
G. (V) Accept information voluntarily provided by governmental or priVate entities.
,
(AGO-Dom, Part iI.AA.g.)

S~op~: As part of an assessment or predicated investigation, an FBI
employee may accept information voluntarily provided by'federal, state, local, or foreign
governmental or,private entities to include individuals. Voluntarily provided information
includes, 'but is not limited to, oral as well as documentary and physical evidence such as:.
a computer hard drive or other electronic media that contains information, paper
documents containing information, or physical objects (e.g., handgun or narcotics).

1. (U/IPOVO)

.

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2. (UlIPOUO) Approval: Supervisory approval is not required to accept voluntarily
provided information. Personnel may not request nor knowingly accept Information
where disclosure would be prohibited by federal. law. See, e.g., ,18 U.S:C. § 2702
(prohib(ting an entity providing electronic communications serviCes from divulging
certain communications and other records, except in certain circumstances).
i·

3. (UI/FODO) Application: This investigative method may be used in assessments, nation~l
security investigations, cririlin~l investigations, foreign intelligence collection cases, and
for assistance to other agencies when it is not otherwise prohibited by AGG-Dom, Part
III.B.2-3.
.
.
4. (U) UselDissemination: The use or dissemination of information obtained by this
method must comply with the AGG-Dom and mOG Section 14.
H. (U) Use and recruit human sources in conformity with the Attorney General's
Guidelines Regarding the Use of FBI Confidential Human Sources. (AGG-Dom, Part
IJ.AA.e)

1. (U/IFOUO) The FJ;31 may use and recruit human sources in assessments and predicated
'investigations in conformity with. the AGG-Dom, AGG-CHS, the FBI CHSPM, and the
FBI CHSVSM. In this context, "use" means obtaining information from, t<l.~.king, or
otherwise operating such sources. '(AGG-Dom, ParfVII.V.)
.
2. (U//FODO) A CHS can be "used" in support of an assessment and a predicated
investigation or for the purpose of validating, vetting or determining the suitability of
another CHS as part of an assessment.

3. (UlIFODO) Religious Service-Notwithstanding any other policy, tasking a CBS to
attend a religious service, wh~ther or not open to the public, requires SSA approval in a
predicated investigation and SAC approval in an assessment.
.
4. (UlIPOUO) All investigative methodsshoulq be evaluated to ensure compliance with the
admonition that the FBI should use the least"intrusive method practicable. That
requirement should be particularly observed during an assessment when using a CHS
because the use of a CHS during an· assessment may'be more intrusive than many other
investigative methods. Use of a CHS in an ass.essment should take place only after
considering whether there are effective, less intrusive means available to obtain the
desired information.. The CHS must comply with all constitutional, statutory, and
regulatory restrictions and limitations. In addition:

a. (UI/FOUO) CHS use and direction must be limited in focus'and scope to what is
nf.h",
necessary to accomplish the authorized purpose and o' .
or predicated investigation

\
b. (D/IPODO) A CHS may be directed to seek information about an individual,
group or organization only to the extent that such information is necessary to
achieve the specific.objective of.the assessment. If such contact reveals
information or facts about an individual, group or organization that meets the
requirements of a predicated investigation, a predicated investigation may be
opened, as appropriate.
.

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c. CU//FOUO
1

I

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f.

===~_-':"""~

1

FOUO) If there is any conflict between the'CHSPM or CHSVSMand.the
DIOG, the DIOG cOl)trols and'OGCshou1dbe immediately notified ofthe
conflict.

5. (UIIFOUO) Application: This investigative method may JJeused in assessments, national
security investigations, criminal investigations, foreign intelligence colleGtion cases, and
for
assistance to
other agencies when it is not otherwise prohibited by AGG-Dom, Part .
rn.B.2.
,.
(U) Note: When collecting positive foreign intelligence, the FBI must operate openly
and consensually with a UnIted States person~ to the extent practicable.

6. (U) Use/Dissernination: The u~e or dissemination of infol1l1ation obtained by this
method must comply with the AGG-Dam'and DrOG Section 14.

1. (D) Grand jury subpoenas for telephone or electronic mail subscriber.,information.
(AGG-Dom, Part II.AA.i)
1.

(UI/FODO)S~ope: During a type I or 2'assessment, an FBI employee may request'from
an appropriate United States Attorney's Office (USAO) the issuance of a'Federal Grand
JuI)' (FOJ) subpoena for the limiteq purpose of obtaining sub~criber information. A FGJ
subpoena, under this provision, may not be requested for the purpose of collecting
foreign intelligenc~. For more information regarding FG] subpoenas, see DIOG Section

ill;

(UI/FOUOj Note: The use of Federal Grand JuI)' Subpoenas; to incluc:Ie subpoenas for
telephone or electronic. mail su.bscriber information, is not authorized in a type 3, 4, or 5

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assessment or in a type 6 assessment or full investigation initiated for the purpose of
collectipg positive foreign intelligence.
2. (U/iFoUO) Approval: In a type 1 or 2 assessment or predicated investigati9n,
supervisory approval is not required prior to requesting a USAO to issue a FGJ subpoena
for telephone or el~~tronic mail subscriber information.
.

.

3. (U) Electronic Communications Privacy Act (ECPA) (18 U.S.C. §§ 2701-2112):
ECPA, 18 U.S.C. § 2703 .states "a provider of electronic communication service or
remote computing service shall disclose to a governmental entity the: (i) Qame; (ii)
address; (iii) local and long distance telephone connection records, or records of sessions,
times and durations; (iv) length of service (including start date) and types ofservice
utilized; (v) telephone or instrument number or other subscriber number or identity,
includiIlg any te,mporarily assigned network address; and (vi) means and source of
payment for such service (including any credit card- or bank account number), of a
subscriber to.or customer of such service when the governmental entity uses ... a Federal
Grand Jury [subpoena]' ..." (emphasis ~dded)

4.

(U//FOUO) AppIic,atio Il : This i.r!v~stigative I!1etl1od m~y be I1sed in type 1 ~l1tl2
assessments, national security investigations, crimi~ai Investigations, and for assistance
to other agencies if relevant to an already open type I or 2: assessment or predicated
investigation. This method may notbe used to collect P9sitive foreign intelligence
information.
I

5. (U) UselDissemination:1

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,
IThe use or dissemination of information obtained by'this method 'must
comply with the AGG-Dom, DJOG Section 14, and the Federal Rules of Criminal
Procedure (FRPC) Rule 6.
5.10.

(U) Investigative Methods Not Au.thorized During Assessments

(U) The following, methods may not be used in an assessment:
(U/IPOUO) Note: For usc of lawful investigative methods during the recruitment, assessment
and validation of a CHS, refer to the AGG-CHS, CHSPM, and CHSVSM.

A.. (U) Mail covers
B. (U) Physical searches of personal or real property where a warrant or court order 'is not
legally required because there is no reasonab!e expeCtation of privacy (e.g., trash covers)
C. (D) Consensual monit~ring of communications. indud ing consensual computer monitoring
D. (U)Use of c1?sed-circuit television.direction. finders. and other monitoring devices
E. (U) Polvgraph examinations
F. (U)Undercover operations

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and Operations Guide'

G. (UIIFOUO) Compulsory process. including grand jury subpoenas (except: subscriber
information during type I and 2 assessments>. administrative and other subpoenas. and
National Security Letters
H. (U) Accessing stored wire and electronic communications and transactional records

1. (0) Use orpen reQisters and trap and trace devices
J. (0) Electronic surv.eillance
K. (U) Physical searches where there is a reasonable expectation of privacy
L. (U) Acquisition of foreign intelligence information in conformity with Title VII of the
Foreilm Ihtelligence Surveillance Act CFISA)
.
",

5.11.

(U//FOUO) FBI National Collection Requirements .

(UfIFOUO) The FBIHQ 'OI establishes FBI National Collection Requirements after coordination
with FBIHQ OGC, othe'r FBIHQ substantive Divisions, and Field Offices. An FB,I National
.Collection Requirement describes information needed by the FBI to: (i) identify or obtain
information about potential targets of, or vulnerabilities, to, federai criminal activities or threats
to the national-security;or(ii) ·inform or facilitate intelligence-analysis and planning'pertinent to
the FBI'$ law enforcement or national security missions.
(T IIIJ::nr IO)!

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: (UiIfOUO) Before any investigative activity is initiated in order to respond to an FB1Nationai
Collection Requirement, an assessment must be initiated or already open. An assessment cannot
. be opened solely based upon an FBI National Collection Requirement. An authorized purpc;>se
(national security or criminal threat) must exist and an objective must be clearly articulated that
identifies an authorized purpos~ .prior to opening an assessment. During an assessment, the FBI
is authorized to collect against any FBI National Collection Requirement that is.relevant to the
assessment because such requirements are issued for information necessary to identify potential
threats or vulnerabilities (e.g., type 3 assessment) or to collect information necessary for
in~elligence analysis (e.g., type 4 assessmentH

I
(OIIFOVO) I

I
b2
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5.12.

(Ul/FOUO) FBI Field Office Collection.Requirements

(UIIFOUO) An FBI Field Offic~ Collection Requirement 'describes information needed by the
field to: (i) identifY or obtain information about potential targets of or vulnerabilities to federal
criminal activities or threats to the national security; or (ii) inform or facilitate intelligence
\ analysis and planning pertinent to the FBI's law enforcement or nation~l security missions.

(U//FOUO) Before any investigative activity may be conducted to respond to, an FBI Field
Office Collection Requirement,.an assessment must be initiated br.already open. An assessment
cannot be opened solelv based upon an FBI Field Office C

b2
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1 ne .!d.L!3d

~.13.

comams 'oetalle<l guidance regarding the Field Office Collection Requirerpents.

(U) Retention and Dissemination of Privacy Act Records

(UIIFOUO) The Privacy Act restricts the maintenance of records relating to the exercise of First
Amen'dment rights by individuals who are United States persons. Such.records may be

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maintained if the information is pertinent to and within the scope of aqthorizcd law enforcement
activities or for which there is otherwise statutory authority for the purposes ofthe Privacy Act
(S U.S.C. § 522a[e][7]). Activities authorized by the AGG:-Dom are authorized law enforcement
activities. Thus, information concerning the exercise of First Amendment rights by United States
persons may be retained if it is pertinent to or relevant to the FBI's law enfor~em~nt or national
security activity.. Relevancy mu·st be determined by the circumstances. If the information is not
relevant to the law enforcement a~tivity being conducted, then it may not be retained: For more
information see mOG Section 4. (AGO-Dom, Part I.e.S)
(U//FODO) Even if information·obtained during an assessment does not warrant opening a
predicated investigation, the FBI may retain personally identifying information for criminal and
national security purposes. In this context, the information may eve·ntuaHy serve a variety of
valid analytic purposes as pieces of the overall criminal or intelligence picture are developed to
detect and disrupt criminal and terrorist activities. In addition, such information may assist FBI
personnel in responding to questions that may subsequently arise as to the nature and extent of
the assessment and its results, whether positive or negative: Furthermore, retention of such
information about an individual collected in tpe course oran l!ssessment will alert other
Divisions or Field Offices considering conducting an assessment:on the same individual tha~ the.
p*rticular i!1divjdyal is nQt II ~rirhj!la.l or natiomll security threat. As such, retaining personally
identifying information collected in the course of an. assessment wflf also serve to conserve .
resources !l;!1d prevent the initiation of unnecessary assessments and other investigative activities.
(D) Marking Closed Assessments That Contain Personal Informatio.n: Information obtained
during an assessment that has insufficient value to justify further investigative activity may
contain personal information. As a res4lt: (i) when records retained in an assessment.specifically
identify an individual or-group whose possible involvement ih criminal or national securitythreatening activity was checked out through the assessment; and (ii) the assessment turns up no
sufficient basis to justify further investigation of the. individual/or gro~p, then the records must
be clearly annotated as follows: "It is noted that the individual or group identified during the
assessment does not warrant further FBI investigation at this time. It is recommended that this
assessment be closed." Extreme care should be taken when disseminating personally identifiable
information collected during an assessment that does not ,lead to sufficient facts to open a
predicated investigation. [fpersonal information from the assessment is disseminated outside the
FBI according to authorized dissemination guidelines and procedures, it must be accompanied by
the t:equired annotation that the assessment involving this individual or grOUp did not warrant
further investigation by the FBI at the time the assessment was closed. I
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IMoreover, an FBI

~e:::m:::'p:::1)lr::(o~y~ee::-,"":'w:-::ml:":(o::-::1snl:":.la:::r::::-es::""!':m:"rt,0~rm~a:::t:!:10:-:n:-tl":jr::::om=-:s::u::c:;:h-::a:-c::tI":'07se:-::d'a:-::s::s':"es:-::s=,m:-:e::n::t£fi;;lle~,-::m::.lust ensure that the

specific annotation (as discussed above) is included with the 'shared information.
5.14.

(U) Asse~sment File Records Management a~d Retention

(U//FOUO)I
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Records'

The retention of

L,r=e""'co""r=s..,.,m".::,....,.,u,.".ar=la=-=n::-,.."o~r~a~ny~su~c::-:c:::'es:-:s::-:o"::'r"!:m:"l':'onn=:"a::":t:!':lo:':n:"':t:':e-::chL n=-=o:Tlo=-g=y"':""::sy-=s7.te=m=-,-=m=us=t:Lb=e-:retained
according to NARA regulations.

.

(VlfFQUQ Assessments that re uire rior u e •

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a:uringlne a-ssessment, they musfbe

.I

regulations.

Ifadditional.objectives arise

"- -.--_...-.-- ----. approved by the SsA Ot S1A, and

IAssessment classification files must be retained according to NARA

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6. (U) Preliminary Investigations
6.1.

(U) Overview

(U) The AGG-Dom authorizes a second level of investigative activity-predicated investigations.
Preqicated investigations that concern federal crimes or threats to the national security are
subdivided into preliminary investigations and full investigations. Preliminary investigations
may be initiated on the basi.s of any "allegation or" information" indicative of possible.criminal
activity or threats to the national security.

6.2.

(U) Purpose and Scope

(U//FOOO) Preliminary Investigations may be carried out to detect, obtain information about, or
prevent or protect against federal crimes 'or threats to the national se~urity. However, a
preliminary investigation c~nnot be initiated or used solely for the purpose of collecting against
Positive Foreign Intelligence Requirements, or for conducting enterprise investigations.
Intelligence responsive to Positive Foreign Intelligence Requirements, FBI National Collection·
Requirements and FBI Field Office Collection Requirements may be collec~ed incidental to a
preliminary ,investigationconceming another person, <?rganiz,ation,or entity. IfPositiveFoteign
Intelligence Requirement, FBI National Collection Requirement or'FBl Field Office Collection
Requirement infcirmation is incidentally coll~cted'in a preliminary iiwestigation, it should be
forwarded to the FIG for evaluation and potential dissemination against collection requirements.
(U) In prelilp.inary investigations, the immediate objectives include such matters as: "determining
whether a federal crime has occurred or is'occurring, or if planning"of preparation for such a
crime is taking place; identifYing, locating, and apprehending,the perpetrators; obtaining
evidence needed for prosecution; or identifying threats to the national secl.1rity.

,

(U) The investig!ltion of threats to the nation!il security may constitute an exercise of the FBI's
criminal Investigation·authority as well as its authority to inve~tigatethreat~to the national
. security. As'with criminal investigations, detecting and solvirig crimes and arresting and
prosecuting the perpetrators are likely objectives of investigation!? relating to threats to the
national security. These investigations, however, serve important purposes outside the ambit of
norinalcriminal investigatIons, by providing t.he basis for decisions concerning other measures
needed to protectthe national' security.

6.3..

(U) Civil Liberties and Privacy

(U) The pursuit of legitimate investigative goals Without infringing upon the exercise of
constitutional freedoms is a challenge that the FBI meets through the application of sound
judgment and discretion. In order to further ensure that civilli.berties are not undermined by the
conduct of criminal and national security investigations, every preliminary investigation iJnder
this subsection must haye an ident,ified authorized purpose and adequate predicatiqn.

(0) No investigative activity, including preliminary investigations, may be taken solely on the
basis of activitie.s that are protecte~ by the F}rst Amendment, or on the race, ethnicity, national
origin or religion of the subject. Prelirrtinaryjnvestigations of individuals, groups or'
organizations must focus on activities related to the threats and or crimes being investigated, not
solely· on First Amendment activities or on the race, ethnicity, national origin or religion of the

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subject. In this contex.t, it is particularly important clearly to identify and d()cument the law
enforcement or national security basis of the preliminary investigation.
(U) Exampie: Individuals or groups who co~mtinicate with each other or .
with members of th~ public in any form in pursuit of social or political
causes-such as opposing war or foreigri poJicy, protesting government
action;;, prolJ1oting .certain religious beiiefs, championing particular local,
national, or international causes, or a change in government through noncriminal means, and activ~ly recruit others to join their causes-have a
fundamental constitutional right to do so. A preliminary investigation may not
be initiated based solely on the exercise of these First Amendment rights.
(U) The AGG-nom present investigators with a number of authorized investigative methods' in
the conduct of a preliminary investigation. Considering the effect on the privacy and civil
liberties of individuals and the potential ~o damage the reputation of ind~viduals, soine of these
investigative methods are more intrusive than others. The least intrusive method feasible is to be
used, but the FBI must not hesitate to use any lawful method consistent with the AGG-Dom. A
more intrusive method may 'be warranted in'light of the seriousness of a crimitlal or national
securitY threat.
(V) By emphasizing the use of the least intrusive means to 'obtain intelligence arid/or evidence,
FBI employees can effectively execute the,r duties while mitigating the potential negative impact
on the privacy and civil liberties of-all people encompassed within the investigation, including
targets, witnesses, and vic.tims. This principle is not intended to discourl!ge FBI employees from'
seeking relevant and necessary intelligence, information, or evidence, but rather is intended t9
encourage FBI employees to choose the least intrusive-but still effective means-from the
available options to obtain the-material.

6.4.

(D) Legal At,lthority

A. (U) Criminal Investigations

(U) The FBI has statutory authority to investigate-all fedeqtl crime not assigned exclusivelyt? another federal agency. (See.28 ~.S.C.:§ 533; 18 U.S.C. § 3052; 28 C.P.R. § 0.85 [1])
(U) The FBI also has .special investigative jurisdiction to investigate violations of state law in
limited circumstances. Specifically,. the FBI has jurisdiction to investigate felony killings of
state law enforcement officers (28 U.S.C. § 540), violent crimes against i!lterstate travelers
(28 U.S.C. § 540A), and serial killers (28 U.~.C .. § 540~). Authority to investigate these
matters is contingent on receiving a request by an appropriate state official.
B. (U) Threats to the National Security
(U) The FBI has authority to investigate threats to the national security pursuant to executive
orders, Attorney Generaloauthorities~ and various statl,1tory sources. (See E.O. 12333; 50
U.S.C. §§ 401 et seq.; 50 U.S.C. §§ 1801 et seq.)

(U) "Threats to the national security" are specifically defined to mean: iht~rnatiorial terrori~m;
espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or
on behalf of foreign powers, organizations, or per~ons; foreign computer intrusion; and other
!patters determined QY the Attorney General, consistent with Executive Order 12333 or any
succe.ssor order. (AGG-Dom, Part VII.S)

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6.5.

(U)' Predication

_

F , ';".';
. . .'
(U) A preliminary investigation may be initiated on the basis of"infonnatio~ or an allegation"

indicating the existence ofa circumstance described as follows:

.

A. 'CU) An activityconstituting a federal crime or a threat to the national security has or may
have occu~red, is or maybe occurring, or will or may o~cur and the investigation may
obtain information relating to the activity or the involvement or role of aQ individuai, group,
or organization in.such activity. (AGG-Dam, Part II.B3)
B. (U) An individual, group, otganizatjon, entity, information, property, or activity is or may
be a target of attack, victimizatjon, acquisition, infiltration, or recruitment in connection
with criminal activity in violation of federal law ora threat to the national security and the
investigation may' obtain information·that would help to protect against such-activity or
threat. (AGG-Dom! Part II.B.3)

(UIIFO~l...-

---,

~I.

(;) \ ( U I I F O U O l l l l

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(H) (U/IFOUOll

6.6.

. \

IL.--_---------:-

(U//FOUO) Standards for Initiating or Approving'a Pre.liminary Investigation

(U) Before initiating or approvirig the conduct of a preliminary investigation; an FBI
or approving official must determine whether:

employe~

A. (UlIFOUO) An authorized'purpose and adequate predication exist for initiating a
preliminary investigation;
B. (U/IFOUO) The preliminary. investigation is not based solely on the exercise bfFirst
Amendment activities or on the race, ethnicity, national origin or religion of the subject;
and

C. (UI/FPBO) The preliminary investigation is an appropriate use of personnel arid financial
resources.
6.7.

.

Documentation and File Review
(D) Duration, Approval,.Notice,
.
,

A. (UlIFOUO) Initiation: The purpose, of and predication for a prelimir~ary investigation must
be documented-in the initiating Ee. The effective date of the prelim.inary investigation is
the date the final approval authority (e.g., SSA or SAC) approves the Ee.,

1. (UlIFOUO) The initiation of a preliminary investigatioribythe Field Office requires
prior approval of the SSA. FBlHQ Division policy implementation guides may require
written notification to the appropriate FBIHQ Uilit and Section. The initiation of a
preliminary investigation does not require FBIHQ and DOJ notification unless th~
preliminary investigation involve;> a sensitive investigative matter as discussed' in
paragraph 3, below.

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2. (VI/FOUO) The initiation of a preliminary investigation by FBIHQr~quires prior .
approval of the Unit Chiefwitli written notification to the applicable FIeld Of6ce. The
initiation of a preliminary investigation does:not require DOJ notification unless the
preliminary investigation Involv'es a sensitive investigative matter as discussed in
'
paragraph 3, below.

3.. (UI/FUiJO) Sensitive InVestigative Matter: THe initiation Of <t preliminary
investjgation involving a sensitive investigative Inatter: .
a. (U/IFOUO) Initiated by a Field Office: requires CDC review, SAC approval,
,and written notification to the appropriate FBIHQ Unit Chi~f and·Section Chief.
Ad<litionally, written notification must be made by the field Office to the United.
States Attorney or by the appropriate.FBIHQ Section to the DOJ CrimInal
Division orNSD as soon as practicable but in all events no later than 30 calendar
da s after the initiation

un I
review an
specifieq above.

IS

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acquired and notice is furnished as

b. (U/IFOUO) Initiated by FBIHQ: requires OGC review, Section Chief appro.val,
and written notification to the United States Attorney and die approp,riate Field
Office or the DO~ Criminal Division or NSD as soon as practicable but in all
. events no later thim 30 calendar'days after the initiation of such an investigation.
"

,

L-:::~-::-_~"""":""-:-'-_"""",:",",,,,,,,,=,~-:--.,.,IIt'nl1st cease until OGC r,eview and Section

Chief approval is acquire'd and notice is furnished as specified above. ,(AGG-Dom,
Part II.B.5.a)

4. (UI/FOUO) The Executive Assistant Director (BAD) for the National Security Branch
must notify the Deputy Attorney G~neral if FBI Headquarters disapproves'~ Field
Office's initiation of a preliminary investigation relating to, a threatto the national
, security on the ground that the predication fot the investigation is ipsufficient, and the
EAD for the 1'l"atio'nal Security Branch is responSible for establishing a syst~m tpilt will
allow for the prompt retrieval of such denials. (AGG-Dom"Part n.B.5.d)

.

..

,

"

B. (U//FOUO) Extension: A preliminary investigation must be conCluded within ~ix months'
of its initiation but:may be'~xtend~d for up to six months by the SAC. This extension
authority may not be delegated by the SAC to the ASAC:Extensions of preliminary
investigations beyond a year are, discouraged and may only be approved by the it ro 'riate
. FBIHQ U'1it and Section for" ood cause." AGO-Dom. P .. '

(U/IFOUO) The following factors mlJst be us~d to determine if"good cause" exists to
extend the preliminary investigation beyond one year:

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•

(U//FOUO) Whether logical investigative steps have yielded information that
tends to inculpate or exculpate the subject;

e

(VI/FODO) The progress that has been made toward-determining whether a full
investigation should be opened or the preliminary investigation should be closed;

~.

(UI/FOUO) Whether, based on the planned course of investigation for the
following six months, it is reasonably likely that information will be obtained that
will lead to predication for a full investigation, thereby warranting an extension
for another six months, or will lead to exculpatory information, thereby
warranting closing the preliminary investigation; and

•

(U//FOUO) Whether adequate. predication has been developed to justify opening a
full investigation or whether sufficient information has been developed'thatj4stify
closing the preliminary investigation.

C. (U/IFOUO) Closing: Wben closing a prelimina.ry investigation, the Field "Office" or FBIflQ
will provide the reason for closing the.investigation. When closing a preliminary
investigation, the SSA or Unit Chief must ensure that all pending investigative methods
,have \)een completed/terminated (e.g., mail covers.and pen register/trap and trace).
1. (U/IFOUO) Closing a·preliminary investigation inftfated bv a Fi.,.Jd
approval from the SSA.I
- "

I

.I

0Cfice reQPires

.

2. (UI/FODO) Closing a preliminary investigation initiated by FBIHQ requires approval
from the Unit Chief and notification to the appropriate Field Office~
3, (UlIFOUO) Closing a preliminary investigation initiated by a. Field Office involving a
sensitive investigative matter requires aporgval from the SAC

I

.'

.

I_

I

-.J

4. (UlIFOUO)Closing a preliminary investigation.initiated by FBIHQ involving a
sensitive investigative matter requires approval from the Section Chiefl

I

I

.'

~.~

D. (UlIFOUO) Conversion: When converting a preliminary investigation to a-full
investigation, see Section 7. for approval and notification requirements.
E. (UlIFOUO) File Review: SuperVisory file reviews must be conducted at least once every
90 days in accordance with Section 3.4. File reviews for pr<;>bationary FBI employees must
be conducted at least every 60 days.

6.8.

(U//FOUO) Standards for. Initiating or Approving the Use of an Authorized
"
Investigative l\1ethod

(UI/FODO) Prior to initiating or approving the use of an investigative method, an FBI employee
or approving official must deterinine whether:
A..(U/IFOUO) The use of the particular inyestigativ~ ~ethod is likely to further the purpose of
the preliminary investigation;

B. (UI/FOUO) The investigative method s_elected is the. least intrusive method, reasonable under
the circumstances; and

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C. (UIIFOUO) The method to be used is an appropriate use of personnel and financial resources.

6.9., (D) Authorized Investigative Methods in Preliminary Investigatio..s
A. (D) All ,lawful methods may be used in a preliminary investigation, except for mail opening,
physical search requiring'a Federal Rules of Criminal Procedure (FCRP) Rule 41 search
warrant or a FISA order, electronic surveillance requiring a j1.ldicial order or warrant, or Title
VII'PISA requests. Authorized methods include, but are not limited to, those listed below,
Some of the methods listed are subject to special restrictions or review or approval,
requirements. (AGG-Dom, Part VA.A)

B. (U//FOUO) A complete discussion of the investigativ~ methods, including approval
requireme9ts, is contained in Sections 5 and 11. The use or dissemination of information
obtained by the use of the below methods must comply-with the AGG-Dom and DIOG
Section 14.

1. (U) Obtain publicly available information.
2., (U) Access and examine FBI and other DO) records, and obtain information from any.
FBI or other DOJ personnel.
3: (tJ)Accessand examine records maintained by. and request information fro~, other
federal. state. local. or tribal. or foreign'governmental entities'or agencies.
4. (U) Use online services and resources (whether non-profit or commercial).
5. (U) Use and recruit human sources in conformitv with the AGG-CHS.
6. (D) Interview or request information from members of the public and private entities.
7~

(U)

~ccept

information voluntarily provided by governmental or private entities.

8. (U) Engage in observation or surveillance not requiring a court order.

9. (D) Grand )ury Subpoenas for telephone or electronic mail subscriber information (see
.
.
also number 16, below).
10. (U) Mail covers. (AGG-Dom, Part V.A.2)

n. (U) Physical searches of personal or real-property where a warrant or court order is not
legally required because there is no reasonable expectation, of privacy (e.g., open fields,
trash covers).. (AGG~Dom, Part V.A.3)
t2. (D) Consensual monitorinl! of communications, including consensual computer
monitoring, subject'to legal review by the CDC or the FBI OGe. When a sensitiv~
monitoring circumstance is involved;the-monitoring must be approved by the DOJ
Criminal Division or; if the investigation concerns a threat to the national security, by the
DO] NSp. (AGO-Dom, Part V.AA) Sensitive monitoring circumstances include:
a. (D) Investigation ofa member of Congress, a federal judge, a member of the
Executive Branch at Executive Level'IV or above, or a p~rson who has served in such
capacity within the previous two years (Executive Level I through IV are defined in 5
U.S.C. §§ 5312-5315);
b. (U) Investigation of the Governor, Lieutenant Governor, or Attorney General of any
state or territory, or a judge or justice of the highest court of any state, or territory,

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concerning an offense involving bribery, conflict of interest, or extortion related to
the performance of official duties;
c. (U) A party to the communication is in the custody of the Bureau of Prisons or the
United States Marshal Service or is being or has been afforded protection in the
Witness Security Program; or
d. (D) The Attorney General, the Deputy Attorney General, or an Assistant Attorney
General has requested that the FIH obtain prior'approval for the lise of consensual
monitoring in a specific 'investigation. (AGG-Dom, Part VILA and 0)
(U//FOUO) Note: ~ee classified appendix for additional information.
(U//FOUO)fl
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.13. (U) Use of closed-circuit television. direction finders. and other monitoring devices,
subject to legal review by the CDC or the FBI OGC. (The methods ddcribed in this
paragraph usually do not require a court order or warrant unless they involve an intrusion
into an area w~ere there is a reasonable expectation of privacy or n~m-consensual
monitoring of communication~,butJegalreview is necessary to ensure compliance with
all appli9able legal requirements.) (AGG-Dom, Pax:t.V.A.5)
'14. (l}) Polygraph examinations. (AGG-bom,Part V.A.6)
15. (U) Uridercoveroperations. In investigations relating to activities in violation,offederal
criminal law that do not concern threats to the national, security or foreign intelligence,
undercover operations must be carried out in conformity with The Allorney·General's
Guidelines on Federal Bureau o(Jnvestigation Undercover Operations. Investigations
that are not ~ubject to the preceding sentence b~cause they concern tlu-eats to the national
s~curity or-foreign intelligence undercover operations involving religious or political
qrganizations must be reviewed and approved by FBJ.Headqu3.rters, with participation by
the DOJ NSD in the review process. (AGG-Dom, Part V.A.7)
16. (U) Compulsory process as authorized by law. includinQ grand jury subpoenas and other
subpoenas. National Security Letters (15 U.S.C. §§ 16~lu, 1681v; 18U.S.C. § 2709; 12
U;S.C. § 341 4[a](5] [A];" 50 U.S.C. § 436); and FISA orders for the production of tangible
things. (50 U.S.C. §§ 1861-63). (AGG-Dom, Part V.A.8)
17. (U) Accessing stored wire and electronic communications and transactional records in
conformity with chapter 121 of title "18, United States Code (18 U.S.C. §§ 2701-2712).
(AGG-Dom, Part V.A.9)
18. (U) Use orpen registers and trap and trace devices irtconformity with chapter 206 oftitle
18, United States Code (18 U.S.C. §§ 3121-3127) or FISA (50 U.S.C. §§. 1841-'1846).
(AGG-Dom; Part V.A. 10)

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6.10. (U) Sensitive Investigative Matter / ~cademic Nexus / Buckley Amendment
(UI/FOVO) The title/case caption of the opening or subsequent EC for a preliminary'

investigation involving a sensitive investigative inatter must contain the words "Sensitive
Tnvestigative'Matter." mOG Section 10 contains the required approva,l authority and factors for
consideration when determining whether to initiate or approve a predicated investigatjon
involving a sensitive investigative matter.

A... (U/IFOUO) Sensitive Investigative Matter: An investigative matter involving the activities
of a domestic public official or political candidate (lnvolvirig corruption or a threat to th~
national security), religious or political organization or individ,ual prominent in such an
organization, or news media, or any other matter which, in the judgment ofthe official'
authorizing an investigation, should be brought to the attention of FBI Headquarters and
QtherDOJ offiqials. (AGG-Dom, Part VII.N.) As a matter, of FBI policy, 'judgment" means
that the decision. ofthe authorizing official is discretionary. DIOGSectirm 10 •
mOG classified Anoendix G define I
~. (UI/ROUO)

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AcadcmkNexus:r
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.,

(UI/FOUO) The sensitivity related to an academic institution arises from the American,
tradition of "academic freedom" (e.g., an 'atmosph~re in which students and faculty are free
to exprt:ssunorthodox ideas and views and to challenge conventional thoughtwithout fear'of
repercussion). Academic freedom does not mean, however, tha~ ac~demic institutions are off
limits to FBI investigators in purs4it of information or individuals of legitimate investigative
interest.
(U/IFOLJO)C==----------'----.,...-----,....,--.1,
.
~l-s-ee....,.;.th:..e...D...I..,.O.,..,G...-c.,.la-s-.si"l'fi..,.e-;d-:A:-p-p-e-nd""';'j:""'x"";G::;".-,- ---...:....---:----:0---.....;.

I '

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C. (UlIFOUO) Buckley Amendment: Although not·a sensitive investigative matter, a request
for "acad~mic records" must only be made,pursuant to the provisions of the Buckley
Amendment (The Family Educational Rights and Privacy Act of 1974,20 U,S.C. § 1232[g],
as amended by PublicLaw 107-56 ["USA PATRIOTAct"]). An FBI employee is'prohibited
from receiving "academic records" that have not been properly requested pursuant to the
J3uckley Amendment. The definition of "academiC! records" is very broad and covers almost
all records about a student other than puq1ic, student directory-type information pU,blisheq by
the institution. The Buckley Amendment contains a penalty provision for those institutions
that improperly provide academic reco'ds to'law e"forecme"' '",,"oies I .

I

I"

'

__

A Buckley Amendment request for academi~ records cannot be maqe during' an assessment.
In a predicated investigation, a request for academic records 'must be made pursuant to the
Buckley Amendment.

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6.11. (U) Program Sp.ecific Investigative Requirements
(U/IFOUO) ~ecause of the. many investigativ.e programs within the FBI, a single universal
requirement will not adequately address every program. To facilitate compliance within an
existing program, the FBI employee should consult the relevant program policv guidance.

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7. (U) Ful.l Investigations
7.1. (U) Overview
(UlIFODO) The AGO-Dom authorizes a second level of investigative activity-pre~iicated
investigations. Predicated investigations that concern federal crimes or threats to the national
security are subdivided into. preliminary investigations.and full inv~stigations. Full' investigations
may be initiated ifthere is an "articulable factuaJ basis" of possible criminal or national threat
activity, as discussed in greater detail in Section 7.5, below. There are three types offull
investigations; (i) single and multi-subject; (ii) enterprise; and (iii) positive foreign intelligence
collection.
. .
.

7.2. (U) Purpose and Scope
(U) Full investigations may be initiated to detect, obtain information about, or prevent or protect
against federal crimes or threats to the national security or to collect foreign intelligence.
.

(V) The objective ofa full investiga~ion .includes: determining whether a federal crime is being
planned, prepared for, occurring or occurred; identifying, locating, and apprehending the
perpetrators; obtaining evidence for prosecution; identifying thre~ts to the national security;
. investigatingim.ent~rprise (asdeflned in DIOGSection 8); or collectii1gpositiv~ foreign
intelligence.
(U) The inve~tigation of threats to the national securit)rcan be investigated und~r both the FBI's
criminal investigation autlWrity and its authority to investigate threats to the national security. As
with criminal investigations, detecting and solving cr~mes, gathering evidence and arresting and
prosecuting the perpetrators are frequently the objectives of investigations relating to threats to
the national security. These investigations also serve important purposes outside the ambit of
normal criminal investigations, however, by providing the basis for decisions concerning .other
measures needed to protect the national sec':lrity. ,"

I
.

(VIIFOVO)I

I

(UIIFOVO) A full investigation solely for the collection of positive foreign' intelligence extends
the sphere oftlie FBI's information gathering activities beyond federal crimes and tqreats to the
national security and permits the FBI to seek information regarding a broad~r.range of matters
relating to foreign powers, organizations, qr persons that may be of interest to .the conduct of the
United States' forc::ign affairs. (SeeDIOG Section 9)
7.~.

(D) Civil Liberties and PJ:ivacy

(U) The pursuit oflegitimate investigativ~ goals without infringing upon the exercise of
constituiional freedoms is a c.hallenge that the FBI meets through the application of sound
judgment and discretion. In order to further ensure that civil liberties are not undermined by the
conduct of criminal and national security investigations, every full investigation under this
subsection must have an identified authorized purpose and adequate predication.
"

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(U) No investigative activity. including full investigations. may be taken solely on the basis of
activities that are protected by the First Amendment or on the race, cthnicity, national origin or
religion of the subject. Full investigations of individuals, groups or organizations must focus on
activities related to the threats or crimes being investigated, not solely on First Amendment
activities o£'on the race. ethnicity, n~tional origin or religion of the subject. In this context. it is
,particularly important clearly to identify and document the law enforcement.or national security
basis 'of the full investigation:
(U) Example: Individuals or groups who communicate with each other or
with members of the public in any form in pursuit of social or political
causes-such as opposing 'war or foreign policy, protesting government
actions, promotIng certain' religious beliefs, championing particular local,
national, or international causes, or a change in government through noncriminal means, and actively recruit others to join their ca4ses-have a
fundamental constitutional right to do so. A full investigation may not be
initiated based,solely on the exercise of these First Amendment rights. '
(U) The AGG-Dom authorize all'lawful investigative methods in the conduct of a full
investigation. Considering the effect-on-theprivaey"andCivi!:liberties'ofindividuals and-the'
potential to damage the reputation of individuals, some of these investigative methods are more
intrusive than others. The least.intrtlsive method f~asible is to be used, but the FBI must not
hesitate to use any lawful method consistent wilh the AGG-Dom. A more intrusive method may
be warrantedjn light of the seriousness of a criminal or national security threat or,the importance
of a foreign Intelligence requirement.

(U) By emphasizing tne use of the least intrusive means to obtain intelligence or evidence, FBI
employees can effectively execute their duties while mitigating the potential negative impact 011.
the privacy and civil liberties of all people eI1compassed withIn the investigation, including,
targets,witnesses, and victims. This principle is not intended to discourage FBI employees from
seeking relevant and necessary intelligence, information, or evidence, but rather is intended to
encourage'FBI employees to choose the least intrusive-but'still effective means-from the
available options to obtain the material.
(U) Because the authority to collect positiv~ foreign intelligence enables the FBI to obtain
'information pertinent to the United States' conduct of its foreign affairs, eyen if that information
is not related to criminal activity or threats'to the national security, the information gathered may
concern lawful activities. The FBI must accordingly operate openly and consensually with a
United States person to the extent practicable when collecting positive foreign intelligence that
does not concern criminal activities or threats to the national seeurlty.
7.4. (D) Legal Authority
A. (U) Criminal Investigations
.(U), The FBI has statutory authority to investigate all federal' crime not assigned exclusively
·to another federal agency. (See 28 U.S.C. § 533; 18 U.S.C.. § 3052; 28 C.F.R. § 0.85 [1].)
(U) The FBI also has special investigative jurisdiction to investigate violations of state law in .

limited circumstances. Specifically, the FBI has jurisdiction to investigate felony killings of
state law enforcement officers (28 U.S.C. § 540), violent crimes against interstate travelers

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(28 U.S.C. § 540A), and serial killers (28 U.S.C. § 540B). Authority to investigate these
matters is contingent on receiving a request by an appropriate state official.
B. (U) Threats to tbe National Security

(U) The FBI has authority to investigate threats to the national security pursuant to executive
orders, Attorney General authorities, and various statutory- sourct:;s. (See E.G. 12333; 50
U.S.C. §§ 401 et seq.; 50 U.S.C. §§ 1801 et seq.)
(0) "Threats to the national security" are specifically defined to mean: international terrorism;

espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or
on behalf of foreign powers, organizations, or persons; foreign computer intrusion; and other
matters determined by the Attorney General, consistent with Executive Order 12333 or any
successor order. (AGG-Dom, Part VILS)
C. (U) Foreign Intelligence Collection
(D) The FBI authority to collect foreign intelligence derives from a mixture of administrative
and statutory sources. (See E.O. 12333; 50 U.S.C. §§ 401 et seq:; 50 U.S.C. §§ 1801 et seq.;
28 U.S.C. § 532 note (incorporates the Intelligence Reform and Terrorism Protection Act,
P.L. 108-458 §§ 2001-2003).

-CU) "ForeigriIhtelligenceWis defined as information relating to the capabilities, intentions, or
activities of foreign governments or elements thereof, foreign- organizations or foreign
persons, or international terrorists. (AGG-Dom, Part VILE)
7.5. (U) Predication
(U) A full investigation may be initiated if. there is an "articulable factual basis" that reasonably
indicates one of the following circumstances exists:
A.

(~)

All activity constituting a'federal crime or a ~hreat to_ the natiQnal security· has or,may
have occurred, is or may be occurring, or"will or may occur and the investigation may obtain
information relating to the activity or the involvement or role of an individu'al, group, or
organization in such actIvity.

B. (U) An individual, group, organization, entity, information, property, or activity is or maybe
a target ofattack, victimization, acquisition, infiltration, or recruitment in connection with
criminai activity in violation of federal law or a threat to the national security and the
investigationinay obtain information that would help to protect agaih~t such activity or threat.

C. (U)The investigation may obtain foreign intelligence that is responsive to a Positive Foreign
.Intelligence Requirement, as defined in DIOG Section 7.4.C.
. (UlIFODO)I

ro
(ii)

(~OU~

------~==1

I '

CUI/FOUO!

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(iii)

(U/IFOUO)
1

~=~~~-

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- - - -

7.6. (U/IFOUO) Standards for Initiating or Approving a Full Investigation
(UlIFOUO) Before initiating or approving the conduct of a full investigation, an FBI employee
or approving official must determine whether:
.

A.

(U//FOUO) An authorized purpose.and adequate predication exist for initiating a,full
investigation;

B. (UI/FOUO) The fuJ[ investigation is based on factors other than the exercise of Eirst
Amendment activities or the race, ethnicity, national origin or religion of the subject; arid
C. (UlIFOUO) The full investigation is an appropriate use ofpersonnel'and financial resources.
7.7; (U) Duration, ApprovaJ, Notice, Documentation and File Review .
A. (U/IPOVO) Initiation: The purpose of and prediCati9n for a full· investigation must be
documented in the initiating EC. The effective date of the full investigation is the date the
.
final approval authority (e.g., SSA or SAC) approves the EC.
1. (UlIFOUO) By a Fielq Office: The initiation of a full investigation for circum~tances
describe(iiilSectioris7.5.A and 7~5:B"by a Fiela Office reqllires pdor approval of the
SSA with written notification to the appropriate FBIHQ substantive Unit. The .initiation
of a full investigation of a United States person relating to a threat to the national'
security for circumstances described in Sections 7.5.A and 7.5.B requires the approval
of the Field Office SSA with written notification to the appropriate FBIHQ substantive
Unit. The FBIHQ substantive Unit must notify DOJ NSD as soon as practicable, but in
all events within 30 calendar days after the initiation of the investigation.

2. (U/IFOUO) By FBIHQ: The initiation of a full investigation for circumstances
described in Sections(7.5.A and 7.5.B by fBlHQ requires prior approval of the Unit
Chiefwith written notification to th.e appropriate' Field Office. The initiation of a full
investigation by FBIHQ of a United States person relating to a threat to the national
security for circumstances described in Sections 7.5.A and 7.5.B requires the approval
of the Unit Chief with writte,n notification to the appropriate-Pield Office and notice to
DOJ NSD as soon as practicable but in all events within 30 days after initiation of the
investigation.
3.

(UI/FOUO) Sensitive Investigative Matter: The initiation of.a full investigation
involving a senSItive investigative matter:
a. (UI/FOlJO) By a Field Office: requires CDC review, SAC approval, and written
notification to the appropriateFBIHQ substantive Unit Chief and SectiolJ Chief.
Additionally, the Field Office must notify, in writing, the United States Attorney,
if required. The appropriate FBIHQ Section must notify, in writing, the DOJ
Crirriina:! Division or NSD as soon as practicable, but no later than 30 calendar
days after the initiation of the investigation. The notice inust identify all known
sensitive investigative matters involved inthe investigation (see classified
appendix for additional notice requirements). If a sensitive investigative matter
arises after the initiation of a full investigation, investigative a~tivity-must cease

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until CDC review and SAC approval are acquired
.specified above.

a~d

notice is furnished as

b. (U/IFOUO) By'FBIHQ: requires OGe review, Section Chief approval, and
written notification to,the United States Attorn.ey and the appropriate Field Office
or theDOJ Criminal Division or, NSD as soon as practicable, but no later than 30
calendar days after the initiation of such an investigation. The notice'must identify'
,aU known sensitive investigative matters 'involved in the investigation (see
classified appendix for additional notice requirements). If a sensitive;investigative
matter arises after the'initiation of a full investigation, investigative activity must
cease until OOC review and Section Chief approval are acquired and notice is,
furnished as specified above. (AGO-Pom, PartU.B.5.a)
4. CU//FOUO) The initia~ion of a full investigation in order to coliect positive foreign
intelligence must be approved as provided in Section 9. Additionally, written
notifi<,:ation toFBIHQ CMS andDOJ NSD is required as soon as practicable but no
later than 30 calendar days after the initiation of the investigation.
5. (UlIFOUO) TheEAD for the National Security Branch must notify the Deputy
Attorney.General if FBI Headquarters disapproves aField Office's 'initiation of a full
investigation rela~ing-toathreatto the national'sec~rity<on-the<groundthatthe .
predication forthe investigatio!l,is insufficient, and the EAD for the National Security
Branc::h is responsible for.establishing a system that will allow for ~he prompt retrieval
of such deniais.(AGG-DOI:n, Part H.BoS.d)

B. (VI!FOUO) Closing: When closing the full investigation, the Field Office or FBIHQ will
provide the reason for closing the investigation. When closing a full investigation, the SSA or
Unit Chief must ensure that all pending investigative methods have been completed!
terminated(e.g., mail cov.ers and pen. register/trap and trace). Although there is no duration
requirement for a fuIUnves~igation, the investigation must be closed upon all investigative
activity being ,exhausted.

1. (U//FOU9) Closing a full investigation iriitiated by a Field Office requires approval
from the SSA. Notification to .the substantive FBIHQ Unit may be required by program
policy.
2. (VI/FOUO) Closing a full investigation initiated by FBIHQ requires approval from the
Unit Chi~f and notification t9 the appropriate Field Office.
3. CU//FOUO) Closing a, full investigation initiated by a Field Office involving a sensitive
investigative matter requires approval from the SAC and,written notification tothe
FBIHQ substantive Unit and Section.
.
4. (UlIPOUO) Closing a full investigation jnitiated by F'BIHQ involving a sensitiv.e
investigative matter requires approval from the Section Chief and written notification to
'
the appropriate Field Office.
5. (U/IPQVO) Closing ~ full 'investigation for the purpose of positive foreign intelligence
collection requires the approval of FBIHQ CMS.

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C. (U//FOUO) File Review: Supervisory file reviews must be conducted at least once every 90
days in accordance with Section 3.4. File reviews f6f probationary FBI employees must be
conducted ~t least every 60 days.

Do (UI/FOUO) Annual Letterhead Meinorandum: Annual letterhead memoranda re

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7.8. (U/IFOUO) Standards for Initiating or Approving the Use of an .AuthoriZed
Investigative Method
(U/IFOUO) Prior to initiating or approving the use of an investigative method, an FBLemployee
or approving official must determi!1e whether:
. A. (U/IFOUO) The use'ofthe particular investig~tive method is likely to further the purpose of
the full investigation;
B. (U/IFODO) The i~vestigativemethod selected is the least intrusive method, reasonable,under
the circumstances;
C. (VIIFOUO) If the full investigation is for collecting positive foreign intelligence, the FBI
must~operate openly, and consensually wtthaUhit~d'Statesperson,t6 the exterttpracticable;
and
D. (UI/FOVO) The method to be used is an appropriate use ofp~rsonriel and firiancialresources.
7.9. (U) Authorized Investigative Methods in Full Investigations
(U),Alllawful'methods may be us~d in a full investigation, unless the investigation is to collect
foreign intelligence. The use or dissemination of information obtained by the use of these
methods must comply with the AGG~Dom and mOG Section 14.. See foreign intelligence
collection, Section 9 for more information regarding use of authorized investigative methods.,
A. (U) Obtain publicly availab~e infonnation.
B. (U) Access and examine FBI and other DOl records. and obtain information from any FBI or
other DO) personnel.
.

Co (V) Access and examine records maintained by. and request information from. other federal,
state, local. or tribal. or foreign -governmental entities or agencies.

.

D. (U) Use online services and resources (whether non-profit or commercial).
E. (V) Use and recruit human sources in conformity \vith the AGG-CHS.
F. (V) Interview or request information froni members of the public and private entitie~.
G. (U)-Accept information voluntarily provided by governmental or private entities.

oR. (D) Engage in observation or surveillance not requiring a court order.
I. (V) Grand Jury Subpoenas for telephone or electronic mail subscriber infor~ation (see also'
'pl below).
J. (0) Mail covers. (AGO-Dom, Part V.A.2)

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K. (D) Phvsical searches of personal or real property where a warrant or court· order is not
legally required because there is no reasonable expectation of privacy (e.g., trash covers).
(AGG-Dom, Part V.A.3)

L. (U) Consensual monitoring of communications, including consensual computer monitoring,
subject to legal review by the CDC or the FBI DGC. W~en a sensitiye monitoring
circumstance is involved, the monitoring must be approved by the DOJ Criminal' Division or,
if the investiga~ion concerns a threat to the national security, by theDOJ NSD. (AGO-born,
Part V.A.4)
(U) Sensitive monitoring circumstances include:

1. (U) Investigation of a member of Congress, a federal judge, a member of the
Executive Branch at Executive Level IV or above, or it person who has served in such
capacity within the previous two years (Executive Level I through'IV are defined in 5
U.S.C. §§ 5312-5315);
.
2. (U) Investigation of the Governor, 'Lieutenant-Governor, or Attorney General of any
state or territory, or a judge or justice of the highest court of any state or territory,
concerning an offens~ involving brjb~ry, conflict of interest, 9r ex,tortioll !,elated to
the'perf6r¢ance -Of official dtities;
3. (U) A party to the communication is in the custody of the Bureau of Prisons or the
United States Marshal Service or is being or has been afforded protection in the
Witness Security Program; or
4. (D) The Attorney General, the Deputy Attorney General, or an Assistant Attorney
General has 'requested that the FBI obtain prior ~pproval for the use ofconsensual .
monitoring il) a specific.investigation. (AGG-Dom, Part VII .kand 0)
(Ol/FOUO) No~e: See classified appendix for additional information.

(U//FOOO) Note: For those state, local and tribal governmentS that do not sanction or
provide a law. enforc.ement exception availabl~ to the FBI for one-party consensual recording
of communications with persons within their Jurisdiction, the 'SAC must approve the
consensual monitoring of comrpunications as an OIA, as disclissed in S.ectiQn 17. Prior to the
SAC. authorizing the OIA, one-party consent must pc.acquired. TheSA<;; may delegate this
OIA approval authority to an A$AC or SSA.
M. (D) Use of closed-circuit television. direction finders. and other monitoring devices, subject
to legal review by the CDC or the FBI OGC. (The methods described in this paragraph
us~ally do not require'a court order or wa.rr~nt unless they involve an intrusion ipto an area
where there is a reasonable expectation of privacy or non-consensual monitoring of
communications; but legal review is necessary to ensure corppJiance with all applicable legal
requirements.) (AGG-Dam, Part V.A.5)
N .. (U) Polygraph examinations. (AGG-Dom, Part V.A.6)
O. (D) Undercover operations. In investigations relating to activities in violation of federal
·criminallaw that do not concern.threats to the national security or foreign intelligence,
undercover operations must be ca.rried out in conformity with The Attornev General's
Guidelines on Federal Bureau oflnvestigation Undercover Operations. Investigations that
are not subj~ct to the preceding sentence because they concern threats to ~he national securitY

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or foreign intelligence undercover' operations involving religious or political organizations
must be reviewed and approved by FBI He~dquarters,with participation by the bOJ NSD in
the review process. (AGG-Dom, Part V.A.7)
P. (U) Compulsory process as authorized by law. including grand jurvsubpoenas and other
subpoenas. National Security Letters (15 U.S.C. §§ 1681u, 1681v; 18 U.S.C. § 2709; 12
U.S.C. § 3414[a][5][A]; 50 U.S.C. § 436), and FISA orders for the production of tangible
things. (50 U.S.C. §§ 1861-63). (AGG-Dom, PartV.A.S)
Q. (U) Accessing stored wire and electronic communications and transactional records in
conformity with chapter 121.oftitle 18, United S.tates Cqde (18 U.S.C. §§ 2701-2712).
(AGO-Dam, Part V.A.9)
·R. (U)Use of pen registers and trap and trace devices in conformity with chapt~r 206 of title 18;
United States Code (l8U.S.C. §§ 3121-3l:?7) or FISA (50 U.S~C. §§ 1841-1846). (AGGDom, Part'V.A.IO)
(U) The following investigative methods can only be used in full~nvestigations:
S. (U) Electronic survei Ilance in conformity with chapter 119 of Title 18. United States Code
(18 U~S;C. §§ 251Q-25~2), FISA, or Executive Order 12333 § 2.5. ~AGG-Dom, Part V.A.~ 1)
T. (U) Physical searches, including mail openings, in conformity with Rule 41 otthe Federal
Rules of Criminal Procedure, FISA, or Executive Order 12333 § 2.5. The classifie.d appendix
to the pIOG, Appendix G, provides additional information regarding certain searches.
(AGG-Dom, Part V.A.l2)
U. (D) Acquisition of foreign intelligence information in conformity with Title Vll of FISA .
.
.(AGG-Dom, Part V.A.I))
7.10. (U) Sensitive Il)vestigative Matter I Academic ~exus I Buckley Amendment
(UI/FOUO) Thetitle/case caption of the opening or subsequent EC for a full investigation
involving a sensitive investigative matter 1'!}ust contain the words "Sensitive Investigative
Matter:." DIOG Section 10 contains the required approval authority and factors to be con~idered
when determining,whether to conduct or to approve a predicated investigation involving a
sensitive-investigative matter. The AGG-Dom defines sensitive investigative matter as follows:
A. (U//FOUO) Sensitive Investigative Matter; An'investigative matter involving the activities
of a domestic public <:>fficial or political c~ndidate.(involvillgcorrupti<:inor a threat to the
national security), religious or.political organization or individual prominent in such an
o'rganization, or news media, or any other matter which, in thejudgment ofthe official .
authorizing an investigation, should.be br<;mght to' the.attep.tion of FBI Headquarters and
other DOJ officials. (AGG·Dom, Part VII.N). As a matter of FBI policy, ''judgmen~'' means
that the decision of the authorizing official is discretionary. DIOG Section 1Qand/or the
DIOG classified Appendix Gdefine domestic public official,'political candidate, religious or
political organization or individual prominent In such an organization, and news media.

B.

r"FOUO) Academic N e . , s : 1 1
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I
(UI/FOUO) The sensitivity related to an academic institution arises from the American
tradition of "academic freedom" (e.g., an atmosphere in which students and faculty are free
to express unorthodox ideas and views and to challenge conventional thought without fear of
repercussion). Academic freedom does not mean,.however, that academic institutions are off
.limits to FBI inves~igators in pursuit of information: or individuals of legitimate investigative
interest.
(UI/FOUO) For matters not ~onsidered a sensitive investigative matterl'-see the 0I0G classified Appendix G.

I

.l

....

C. (UIIFOUO) Buckley Amenqment: Although not a sensitive investigative matter, a request
for "academic records" must only be made pursuant to the provisions of the Buckley
Amendment (The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232[g],
as amended by Public Law 107-56 ["USA PATRIOT Act"]). An FBI employee is prohibited
from receiving "academic records" that have not been properly requested pursuant to the
Buckley Amendment. The definition of "academic records" is very broad and covers almost
all. records about a student other than public, stugent directory-type informatio!1 published by
the institution. The Buckley Amendment contains a penalty provisionofor those institutions
that improperly provide academic records to law enforcement a enci

-(UIIFOUO) A Buckley Amendment request for academic records cannot be made-during an

assessment. In a predicated inv.estigation, a request for
pursuant to the Buckley Amendment.

ac~demic

records must be made

7.11. (U) Program Specific Inv.estigative Requirements
(U//FOUO) Because of the many investigative programs within the FBI, a single universal
requirement will not adequately address every program. To facilitate compliance within an
existing program, the FBI employee should consult the relevant program policy guidance.

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8. (U) Enterprise Investigations
8.1. (U) Overview
(U)Enterprise investigations may only be opened and operated as full investigations and are
subject to the same requirements that apply to full investigations de~cribedin Section 7.
Enterprise investigations focus on gro\lps or organizations that may be involved in the most
serious criminal or natjonal security threats to the public, as described in Section 8.5 below.
Enterprise investigations cannot be conducted as preliminary investigations or assessments, nor.
may they be conducted for the sole purpose of collecting positive foreign intelligence. See
Section 8.2, belo~, regarding preliminary investigations and assessments.
8:2. (U) Pllrpose, Scope and Definitions
(D) The term "enterprise" 'includes any partnership, corporation, association, or other legal entity,
and any union or group of individu~ls associated in fact, although not'a legal entity. The purpose
of an enterprise investigation is to examine the structure, scope, ,and nature of the group or
organization including: its relationship, if any,. to a foreign power; th~.identity and relationship of
its members, employees, or other persons who may be acting in furtherance of its objectives; its
finances and resources;.ifsgeographical diinensiqns;.itspast and,future·aetivities and goals; and
its capacity for harm. (AGG-Dom, Part II.C.2)

(UI/FODO) Although an enterprise investigation may not be conducted as a preliminary
,investigation, a preliminary investigation may be used to d.etermine whether a group'or'
organization is a criminal or t~rrorist enterprise if the FBI has "information or an allegation" that
an activity constituting a federal crime or a threat to the national security has or may have
occurred, is or may be occurring, or will or may occur, and the investigation may 9btain
information relating to the activity of the group or organizatio!l in such activity. An assessment
may also be initiated to determine whether a group or organization is involved.in activities
constituting violations offederal.criminal law or threats to the national security.
8.3. (U) Civil Liberties and Privacy
(U) The pursuit of legitimate investigative goals without infringing upon the yxercise of
constitutional freedoms is a challenge that the FBI meets through the application of sound
judgment and discretion. In order to further ensure that civil liberties are not undermined by the
conduct of crimin~1 and national security investigations, every full investigation, including an
enterprise investigation underthis subsectipn, must have an identified,authorized purpose and
adequate predic~tion.
(D) No investigative activity, including enterprise investigations, may be taken solely on the
basis of activities that are'protected by the First Amendment or on the rac~,ethnicity; national
origin or religion of the subject. Enterprise investigations of groups and organIzations must focus
on activities related to the threats or crimes being investigated, not solely on First Amendment
activities or on the race, ethnicity,.national origin or religion of the members of the group or
organization: In this context, it is particularly important clearly to identify and document the law
enforcement or national security basis of the ~nterprise investigation.

(U/IPOUO) Example: Groups who communicate with each other or with
members of the public in any form in pursl.!-it of social or political causes-

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,sJ.lch as opposing war or foreign policy, protestfng government actions,
promoting certain religious beliefs, championing particular local; national; or
international' ca.uses, 9r a change in government through non-criminal means,
'and actively recruit others to join their causes-have ',a fundamental
constitutional right to do so. An enterprise inv~stigatiof!. may not b~ initiated
. qased solely on the exercise of these First Amendment rights.
(U) The AGO-Dom ~uthori~e all lawful investigative methods in the conduct of an enterprise
investigation. Considering t~e effect on the privacy and,civi1liberties of individualirand the
potential to damage the reputation of individuals, some of these investigative methods are more
intrusive than others. The least intrusive method feasible is to be used, but the FBI must not
hesitate to use any lawful method consistent with the AGG-Dorri. A more intrusive methoc,i may
be'warranted in light of the,seriousness of ~ criminal or national security threat.
(D) By emphasizing'the use of the le3.st intrusive means to obtain intelligence and/or evidence,
FBI ell1ployees can effectively execute their duties while mitigating the potential negative impact
on the privacy and civil·liberties oral! people encompassed within tJieinvestigation, including
targets, witnesses, and victims. This principle is not intended to discoJ.lrage FBI employees from
seeking relevant and necessary in~el1igence, information,or evidence, but radier is intended to
encourage EBLemployeesto choose theJeastintrusive----::but stliLeffective meims~fromthe
available options to obtain the material.

8.4. (D) Legal Authority
(U) A full investigation of a group or organization may be initiated as an enterprise investigation
ifthere is an art,iculable factual basis for the investigation that-reasonably indicates the group or
organization may'have engaged"or may be engaged in, or qlay have or may be engaged in
planning, or preparation or provision of support for: (AOG~pom, p~ II.C.I)

A. (U) Apatteni of racketeering activity 3.s defined in 18U.S.C. § 1961 (5);
B. (U) International terrorism, as defined in the AGO-Dam, Part VII.J, or other threat to the
natIonal security;
I
.
C. (0) Domestic terrorism as defined hi 18 U.S;c. § 2331 (5) involving a violation of federal
criminal law;
D. ,(U) Furthering political or social goals wholly or in part through activities that involve force
or violence and a violation of fedenil criminal' law; or
E. (U) An offense,described in 18 U.S.c;. § 2332~(g)(5)(B) or 18 U.S.C. § 43.

8.5. ,(U)PrediCation
(U).An enterprise investigation is predicated when there is an articulable. factual basis for the
investigation that reasonably indicates the group or organization may have engaged or may be
engaged in,or may have or may'be engaged in, planning or preparation'or provision of support
for the matters identified in Section 8.4, ~bove,
(U) The, "articulable factual basis" for opening an enterprise investigation is met with the
identification ofa group whose statements made in furtherance of its objectives, or its conduct,
,demonstrate it purpose of committing crimes or securing the commission of crimes by others.
The group's activities and statements of its members may be considered in combination to

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comprise the "articulable factual basis," even ,if the statements alone or activities alone would not
warrant sU,ch a getermination.
(U//FOUO) Examples of situations in whi'ch an enterprise investigation rriay
be opened:
,.

(U//FOUO)I

I
I
iii.

8.6.

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(UI/FOUO~

.ell) Duration, Approval, Notice, Documentation and File Review

A. (U) Initiation:
1. (U//FOUO).Bya Field Office: The initi~tion of an enterprise investigation by an FBI
Field Office requires the prior approval of the Field Office'SSA with written notification
to ~he appropriate FBIHQ substantive Unit and DOl (as discussed in greater detail' below).
FBlHQ Divisions may require specific facts to be included in this notification.
.

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n erpnse mvestlgatIons mvo vmg sensjtive investigative matters require CDC review,
SAC approval, and written notification to the appropriate FBIHQ substantive Unit and

.

D~

(U//FOUO) The responsible FBIHQ entity !TIust notify the DOl NSD or the Organized
Crime and Racketeering Section (OCRS) of the initiation of an enterprise investigation;
by a Field Office or by FBTI:{Q, as soon as practicable but no later than 30 dayirafter t!:te
initiation of the investigation. The FBI Field Office must also notify any reievant USAO,
except in,counterintelligen~e investigations. See the DOl NSD policy that governs
notification to the USAO for counterintelligence investigations.
2. (U//FOUO) By FBIHQ: The initiation 9f an enterprise investigation by an FBIHQ
Division requires the prior approval of the 'appropriate Section Chief with written
notification to the apptopriate field Offices and DOl (as discussed in greater detail,
below). Enterprise investigations involving sensitive investigative matters require OGC
review, appropriate Assistant Director approval, and written notification to DOl.
(UI/FOUO.) The responsible F~IHQ entity must provide notific~tion of an enterPrise
investigation initiation to the appropriate DOl compqnent (N8D or OCRS) as soon as
practicable, but'no later than 30 days after the initiation of the investigation. FBlHQ must
notify any relevant USAO ofth~ initiation of all enterprise investigations, except in
c0!JnterinteHige~ce investigations.

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(UIIFOUO) Note: For enterprise investigations that involve allegations that pertain to
national security matters, the responsible 001 component for the purpose of notification
and reports is the NSD. For enterprise investigations.relating to a pattern of racketeering
activity that does not involve terrorism ~ffenses, see 18 U.S.C. § 2332b(g)(5)(B), the
responsible 001 component is the Organized Crime and Racketeering Section of the
Criminal Division. (AGG-Dom, Part Il.t.3)

(D) The Assistant Attorney General for National Security or the Chief ofthe Organized
Crime and Racketeering Section, as appropriate, may at any time request the FBI to provide a
report on the status of an enterprise investigation and the FBI wilLprovide such reports as
requested. (AGG-Dom, Part II C.3.d)
B. (U/IFOUO) Closing: When closing the enterprise investigation, the Field Office or FBIHQ

will provide the reason for closing the inv<;:stigation. When closing an enterprise investigation,
the SSA or Unit Chief must ensure that alL pending investigative methods h.ave been
completed/terminated (e.g., mail covers and pen register/trap and trace)~ Although there is. no
duration requirement for an enterprise investigation, the investigation must be closed upon all
investigative activity ~eing exhausted.
.
1. (U/(FOUO) Closing an enterpris.e investigation initiated by a Field Office requires
approval from the SSA with written notification to the appropriate FBIHQ substantive
Unit. Unless advised contrary by the FBIHQ (UACB) substantive desk, the enterprise
investigation can be. closed 30 days after the date of notification to FBIHQ.

2. (U/IFOUO) Closing an enterprise investigation initiated by FBIHQ requires approval
from the Unit Chief and notification to the appropriate Field Office.
3. (U/IFOUO) Closing art enterprise investigation initiated by a Field Office involving a
sensi.tive investigative matter requires approval from the SAC, with written notification
to the appropriate FBIHQ substantive Unit. The enterprise investigation can be closed
30 days after the notification to FBIHQ, UACB.
4. (UIIFOUO) Closing an 'enterprise investigation iriitiated by FBIHQ involving. a
sensitive investigative matter requires approval from the Section Chief, and written
notification to the appropriate Field Office.

C. (U/IFOUO)'File Review:
(U/IFOUO) Supervisory file reviews must be conducted at least once every 90 days in
accordance with Section 3.4. Fil~ reviews for probationary agents must be conducted atJeast
once every 60 days.

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9. (U) Foreign Intelligence
9.1. (U) Overview

CU) Foreign intelligence is "information relating to the capabilities, intentions, or activities of
foreign governments or elements thereof, "foreign organi2iations; or foreign persons, or
international terrorists." A "Foreign Intelligence Requirement" is a collection requirement issued
under the authority of the DNI and accepted by the FBI' 01. Additionally, the President, a USIC
.office design~ted by the President, the Attorney General, Deputy Attorney General, or other
designated DOJofficial may levy a Foreign Intelligence Requirement on the FBI. Foreign
intelligence collection by the fBI is based upon requirements..
(UIIFOU0) Foreign Intelligence Requirements issued by one of the· parties listed above arid
a~cepted by the FBI DI will fall into one oftwo categories: (i) those that address national
security issues that are within the FBI's core national security mission; and (ii) information
relating to the capabilities, intentions, or activities of foreign governments or elements thereof,
foreign organizations, foreign persons, or international terrorists which are not within the FBI's
core national security mission.
(U//FOUO) Requirements whic.h fa) Litlto the first·<;ategory may correspond to FBI National
'Collection Requirements as defined In SectionS.II. FBI National Collection Requirements wi[[
only be addressed in properly authorized assessments or incidental to predicated investigations.
.
(See the DI PG for specific requirements.)
(UIIFOUO) Requirements which fall into the second category are known as Positive Foreign
Intelligence Requirements and may only be addressed under the authorities described in this
section. Assessments and full investigations intended to result in the collection of positive
.
foreign intelligence must be.based upon established requirements and approved by FBIHQ DJ-.
Preliminary; investi ations for the sole u ose of collettin ositive forei n intelli ence are not b2 "
authorized.
b7;:
ssessments an ull investigations initiated for the
purpose ofpositive foreign mte 1gence co ection must be opened by FBIHQ CMS. For
assessments, the authorized purpose and icle"ntified objective must be documented in the
assessment file.

\

(ll//FOUO) "The general gtiid~nce of the FBI's foreign intelligence collection activities by DNIauthorizeq requirements does not limit the FBI's authority to conduct investigations supportable
on the basis of its other authoritie~to investigate federal crimes and threats to the national
security-in areas in which the information sought also falls under tl1e definition of foreign
intelligence." (AGG-Dom, Introduction A.3) Accordingly, the AGG-Dom authorizes the
, collection 9f foreign intelligence incidental to predic.ated criminal, counterintelligence,
counterterrorism, cybcr, and weapons of mass destruction investigations.
(UIIFOUO) FBINational Collection Requirements which address national security issues that
are within the FBI's core national security !J1ission wiII be worked under FBI substantive-case
Classifications (e.g., 200, 105,315) as assessments. An assessment.cannot be opened solely
!?asedupon an FBI National Col.Iection Requirement. An authorized purpose (national security or
criminal threat) must exist and the opjective of the assessment must be clearly articulated when

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opening an authorized assessment The authorized purpose and identified objective for all
assessments mustbe documented in the assessment file.
(UIIFOUO) Example:

(i) (UlIFOUO)
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b7A

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(UlIFOUO)

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(UIIFOUO) Note: FBIHQ DI provides specific guidance in its policy implementation guide
regarding FBI National Collection Requirements, PBI Field Office Coliect.ion Requirements,
and Positive For~ign Intelligence Requirements.
9.2. (D) Purpose and Scope
(UIIFOUO) As stated above, foreign intelligence is "information relating to the capabilities,
intentions, or activities of foreign governments or elements thereof, foreign organizations, or
foreign persons, or internatiorial terrorists." The collection of.positive foreign intelligence
extends the sphere of the FBI's information-gathering activities beyond federal crimes and
threats to the national security and permits the FBI to seek information regarding a broader range.
of matters relating to foreign powers, organizations, or persons that may be of interest to the
conduct of the United States' foreign affairs. (AGG-Dom, Introduction A.3)
9.3. (U) Civil Liberties and Privacy
(U) Because the authority to collect positive foreign intelligence enables the FBI to obtain
information pertinent to the United States' conduct of its foreign affairs, even if that information

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is not related t9 criminal activity or threats to the national security, the information so gathered
may concern' lawful activities. Accordingly, the FBI must operate openly aild consensually with
a United States person to the extent practicable when collecting positive. foreign intelligence.
(AGG-Dom,IntroductionA.3)
.
(U) The pursuit of legitimate investigative goals without infringing upon the exercise of
constitutional freedoms is a challenge that the FBI m~ets through the·application of sound
judgment and discretion. In order to further ensure that civil liberties are not undermined, every
assessment or full investigation involving the collection of positive foreign intellig~nce under
this section must have an authorized purpose and an identified objec~ive. Additionally, the
authorized purpose and objective of any assessment conducted must be documented and retained
as prescribed in Sections 5 and H.
(D) No investigative activity, including the collection of positive foreign intelligence, may be
taken solely on the basis of activities that are. protected by the First Amendment or on tne race,
ethnicity, national origin or religion ofthe subject. Collection of positive foreign intelligence
requires: (i) an assessment relating to a matter of foreign intelligence interest responsive to a·
Positive Foreign Intelligence Requirement;.or (ii) a full inyestigation th;it is predicated on a
Positive Foreign Intelligence Requirement.
(U) The~AGG~Dom presegtizwestigator,s with a number ofaIl~horized investigative met~odsin
the conduct cif an assessment or full investigation-to collect positive forcign intelligence..
Considering the effect on the privacy and civil libertics of individuals and the potential to
damage the reputation of individuals, some of these investigative.methods are more intrusive
than others. The least intrusive method feasible is to be used, but the FBI must not hesitate to use
any lawful method consistent.with the AGG-Dom. For further explanation of the least intrusive
method refer to Section 4.
(U) Moreover, when collecting positive foreign intelligence either as part of an ilssessment
related to a matter offoreign.inteHigence interest or a~ part of a full investigation predicated on a
PositlveForeign Intelligence Requirement, the FBI must operate openly and consensually with a
United States person~ to the extent. practicable.
(U) By emphasizing the use of the least intrusive mea,ns to collect positive foreign intelligence
anel by ~mphasizing the need to operate openly and consensually with a United States person,to
the extcnt practicable, FBI employees can' effectively execute theIr duties while mitigating the
potential Ilcgative impact on the privacy and civil liberties of all people encountered as part of
the collection. This principle is not intended to discourage> FBI employees from seeking relevant
and necess~ry positive foreign intelligence or evidence, but ratheris·intended to ma~e sure FBI
employees choose the least intrusive-but still effective-means from the available options to
.obtain .the information.

9.4. (U) Legal Authority
(U) The FBI's legal authority. t() collect positive foreign intelligence derives from a mixture of
administrative and statutory sotirces.(SeeE.O. 12333; 50 U;S.C. §§ 40let seq.; 50 U.S.C. .
§§ 1801 et seq.; 28 D.S,C. § 532 note [incorporates the Intelligeric:;e Reform: and Terrorism
Protection Act, P.L. 108-458 §§ 2001-2003]). In collecting positive foreign intelligence, the FBI
will be guided b>, Collection Requirements issued under the authority of the DNI, including the

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National Intelligence Priorities Framework and the National HUMINT Collection Directives, or
any successOl: directives issues under the authority of the DNI and.accepted by FBIHQ DI.
A. (U) Assessment Activities
(U/IPOUO) As discussed in Section 5 of the DIOG,.the AGG-Dom authorize six types of
assessments, one of which specifically applies to coll~ction of positive foreign intelligence as
follows: "seeking information, proactively or 'it! response to investigative leads oo',matters of
foreign intelligence interest responsive to foreign'intelligence,requirements." Positive Foreign
Intelligence Requirements can be found on the D1's Collection Management Section website.
Further instructions on the coilection of positive'foreign intelligence a.re contained in the Of PG.
B. (U) Full Investigation Activities
(U//FOUO) As discussed'ip Section 7 of the DIOG, theAGG-Dom cites three,pr~dication
circumstances warranting a fuli investigation, one of which specifically applies to collection of
positive foreign.intelligence: "The full inve,stigation may obtain foreign intelligence that is
responsive to a foreign intelligence require~ent."
CU//FOUO) Predicated positive foreign intelligence collection or!ginate~ when t.h~ Offic~ofthe
DNI levies'aforeign-intelligepcecollection requirement-on toe' FBI and'the DI accepts,the
requirement as one to which the FBi will endeavor to respond to as part of its Positive Foreign
Intelligence Program.
(UI/FODO) A full invystig~tion to co!Iect positive foreign intelligence is appropriate only when a
DNI--authorized requirement exists for a particular issue and thatr~quirementhas been accepted
by FBIHQ Dr.

9.5.

(u//FObO) Duration, Approval, Notice,Doctimentation, File Review and FBIHQ
Standards for Approving .the Initiati9il of Positive 'Foreign Intelligence' .
Investigations

A. (U/IFODO) Positive Foreign Intelligence Collection Authorities
(U/IFOUO) The.FBIHQ CMS isrespons~ble{orpromulgating FBI policy and oversight of
the Foreign Intelligence Collection Program (FICP). FBIHQ CMS will provide notice to the
DOJ NSDupon the initia~ion of a positive foreign intelligence investigation. To ensure'that
all positive foreign'intelligence collectiop. is focused on authorized Positive'Foreign
intelligence Requirements, only FBIHQ eMS may approve the initiation of a positive
foreign intelligence·assessment or full investi ation
therwise
.determined.by Dr).
Ie ,offices must request, by BC, FBIHQ CMS approval
o open suc assessments and full investigations. .

B. CV//FOUO)-Standards-to be Co~sideredWhenIn'itiating an Assessment or Full Foreign
Intelligenc,e Investigation to Collect Positive Foreign Intelligence
(U/IFOUO) Before initiating or approving an·assess~ent or f411 iovestigation for the purpose
of collecting positive foreign intelligence, the llPproying official must determine whether:

1. (U/IFOUO) An authorized'purpos~and objective exists for the conduct of the assessment
or an authorized purpose and adequate predication exists for initiating a full investigation;

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2. (UI/FOtJO) The assessment or fun investigation is not based solely on the exercise of
First.Amendment activities or on th'e race, ethnicity, national origin or religion of the
subject; and
3. (UI/FOUO) The assessment or futl investigation is an appropriate use Qfpersonnel and
financial resources.
9.6.

(U/IFOUO) Standards for Initiating or Approving the Use of an Authorized
Investigative Method

(UlIFOl)O) Before initiating or approving the use of an investigative method in an assessment or
full investigation for the purpose of collecting positive foreign. intelligence, an FBI employee .or
approving official must determine whether:

A. (U//FOUO) The use of the particular investigative method is likely to further the purpose of
th~ assessment or full investigation;
B. (UIIFOUO) The investigative method selected is the least intrusive method, reasonable under.
the cir~umstances and, if taken relative·to a United States person,.the method involves open
. and consensual activities, to the e~tent pr/Jcticable;

C.

-.

~

-

-

(UI/FOUO).If open and consensual activity would likely be successful, then covert nonconsensual contact with a United States person may not be approved.
.
\
D. (U//FOUO) In the case of an assessment, the anticipated value of the assessment justifies the
use of the selected investigative method or methods; and
E. (U//FOUO) Theinvestig~tive method is an appropriate use of personnel and financial,
resources.
9.7.

(U) Authorized Investigative Methods in Foreign Intelligence Assessments and
Predicated Investigations

(U//FOUO) Prior to initiating or approving t~e use of a method, an FBI employee and approving
official will apply the ~tandards as provided in Section 9.6. With the exceptions noted below, all
lawful assessment methods may be use.d during positive foreign intelligence ass~ssments. With
the exceptions noted below, all lawful methods may be used during a full investigation to collect
positive foreign intelligence. If actions are to be taken with respei::t to a United States person,
the method used must inclUde open ~nd consensual activities, to the extent practicable.
A. (U) Assessments (see DIOG Section 5.9 for a complete description of the following methods
that may be used in assessments):
.
1. (U) Obtain publicly available information.
2. (U) Engage in observation or surveillance not reQuiring a court order.
3. (U) Access and examine EBI and other DOJ records. and obtain information from any
FBI or other DOJ personnel:
4. (U) Access and examine records maintained by. and reQuest information from. other
federal, state. local. or tribal. or foreign governmental entities or agencies.
5. (U) Use online services and resources (whether non-profit or commercial).
6. (U) Interview or reQuest information from ,members of the public and private entities.

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7.

(U) Accept information voluntarilv provided by governmental or private entities.

8. (U) Use and recruit human sources in conformity with the AGG-CHS.
(UIIFOUO) Note: The use of Federal Grand lury Subpoenas, to Include subpoenas for
telephone or electronic mail subscriber information, is not authorized in a positive foreign
intelligence assessme,nt.

B. (U) Full Investigations:
(D) In addition to the authorized methods listed in Section 9.7.A, above, the following lawful
methods may also be used in full investigations opened for the purpose of collecting positive
foreign int.elligence:
.
.
1. (U) Physical searches of personal or real property where a warrant or court order is not
-legally required because there is no reasonable expectation of privacy (e.g., trash'
covers). (AGG~Dom, Part V.A.3)
2. (U) Consensual monitoring of communications. includ ing. consensual computer
monitoring. subject to legal review by the CDC' or the FBI OGC. Where a sensitive
monitoring circum~Janc_e ,is inyolveg; tbemonitoring.must be approved. by the-DOJ
Criminal Division or, if the investigation concerns a threat to the national security; by
the 001 NSD. (AGG-Dom, Part Y.AA)
(U//FOUO) Note: See the classified appendix.for additional information.
(U/IPOUO) Note: For those state, local-and tribal governments that do not sanction br
proyide a ,law enforcement exception available to tne FBI for one-party consent
recording of communications with persons within'theirjurisdiction, the SAC must
approve the consensual monitoring of' communications as an OIA. Prior to the SAC
authorizing the OJA, one-party consent must be acquired. The SAC may delegate the
OIA approval authority to an ASAC or SSA.

. 3. (U) Use of closed-circuit television, direction finders. and other monitoring devices.
subject to legal review by the CDC or the FBI OGe. (The methods,described in this
paragraph' usually do not require court orders or warrants unless they involve an
intrusion into an area where there-is a reasonable expectation of privacy or nonconsensual monitoring of communi9ations, but legal review is necessary to ensure
compliance with ~ll applicable legal requirements.) (AGG-Dom, Part V.A.5)

4. (U) Polygraph examinations (AGG-Dom, Part V.A:6)
5. (U) Undercover operations. Undercover operations involving religious or political
organizations conducted for the purpose of collecting positive foreign intelligence must
be reviewed 'and approved by FBIHQ, with participation by the 001 NSD in the review
process. (AGG-Dom, Part V.A.7)

6. C'J//FOUO) Use of pen-registers and trap and trace devices in c0l1formity with FISA
(50 U.S.C. §§1841-1846), for non-United States persons only. (AGG-Dom, Pari
V.A.lO)
7. (U) Electronic surveillance in conformity with EISA or E.O: 12333 § 2.5. (AGO-Dom,
Part V.A.II)
.

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8. (UI/FODO) Physical searches. including mail open'ings. in conformity with FISA or
E.O. 12333 § 2.5. The classified app<;ndix to the mOG provides additional information
regarding certain searches. (AGO-Dam, Part V.A.12)
9. (U) Acquisition of positive foreign intelligence information in conformitv with Title
. VII of FISA. (AGG-Dom, Part V.A.13)
.
,
10. (U//FOUO) Ohtaining a business records order pursuant to FISA, 50 U.S..C, §§ 1861-83,
for records relating to a non-United States person only.
9;8. (U/IFOUO) Investigative Methods Not Authorized During Foreign Intelligence
Investigations
.
(D/IPOUO) The following investigative methods are not permitted for the purpose of collecting
positive foreign intelligence:
A. (U/IPOUO) National Security Letters (15 U.S.C. §§ 1681u, 1681v; 18 U.S.C. § 2709; 12
U.S.C. § 341 [a][5][A]; 50 U.S.C: § 436);

B. (U//FOUO) Obtaining a business records order pursuant to FISA, 50 U.s.C. §§1861-1863,
fat recoras r~latillgJo ~ Un~~edStatespersoil;
C. (Ui/FOUa) Use of pen registers'and trap and trace devices in conformity with FISA(50
U.~.C. §§ 1841-1846) on a United States person;

D. (U//FOUO) Use of pen registers'and trap and trace devices' in confonnity with chapter 206 of
18 U.s.C. §§ 3121-3127;
.

E. (UlIPOUO) Mail covers;
F. (UI/FOUO) Compulsory process as authorized by l~w,.including grand .jury subpoenas and
other subgoenas (e.g., Administrative Sub'poena); and
.
G. (UlIFOUO) Accessing stored wire and electronic communications·and transactional records
in conformity with chapter 121 of title I 8,. United States Code (18 U.S.C.§§ 2701-2712).
. (AGG-Dom, Part V.A.9)

9.9. (U) Sensitive Investigative Matter
(UI/FOUO) The title/e<ase caption of the opening or subsequent EC for a positive foreign
intelligence assessment involving a sensitive investigative matter must. contain the words
"Assessment" and "Sensitive Investigative Matter." The title/casecaption of the opening.or
subsequent EC for a ftill investigation for the collection of positive foreign intelligeJ)ceinvolving
a sensitive investigative matter must contain the words "Sensitive Investigative Matter." DIOG .
Section 10 contains the required approval authorities and factors to be considered relative to an
assessment or a predicated investigation involving a sensitive investiga~ive matter. The AGGDam defines sensitive investigative matter as follows:
A. (U//FOUO) Sensitive Investigative Matter: An invest.igative matter involving the activities
of a domestic public official or political candidate (involving corruption or a threat to the
national security), religious or political organization or individual p'rominent in such an
organization, or news media, or any other matter which: in the judgment of the official
authorizing an investigation, should be brought to the attention of FBI Headquarters and'
other DOr officials. (AGG-Dom, Part VII.N.) As a matter of FBI. policy, "judgment" means
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that the decision of the authorizing official is discretionary. orOG Section 10 and/oJ; th€l
DIOG classified Appendix G define domestic public offiCial, political candidate, religious or
political organization or individual prominent in such an organization, and news media.
All positive foreign intelligence assessments or full investigations involving a sensitive
investigative matter must be reviewed by the CDC, approved by the SAC, and approved by
the appropriate FBIHQ DI Section Chief. (see mOG Section 9.10 below)
B. (UlIFOUO) Academic J\T.nv.. ".'

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(V//FOUO) The sensitivity related to an academic institution adses from the American
tradition of "academic freedom" (e.g., an atmosphere in which students and faculty are free
to express unorthodox ideas and views and to challenge conventional thought without fear of
repercussion). Academic freedom does not mean, however" that academic institutions are-off
limits to FBI investigators in pursuit of information or individuals of legitimate investigative
i l1Jerest.
L-_...;...

........ see

the DIOG classified Appendix G.

9.io. (U) Approval and Notification
A. (U) Initiation
(U//FOUO) The authorized purpose of an assessment or full investigation must be
documented in the initiating EC.

1. (UI/FOUO) Approval to Initiate an Assessment to Collect Positive Foreign
Intelligence: No assessment for the purpose of seeking information relating to matters
of positive foreign intelligence interest responsive to a Positive Foreign Intelligence
Requirement may be initiated wit~:!.h~o~ut~r~io~r~a~!!.:ro~vy'!a!!l..!ti~rollm!!..J::.L2..I.D.1.LJ,.~~~'='---,
obtainin FBIH CMS a
ase cap IOn 0 t e opening EC must contain the
r
ssessment, an the synopsis must identify the authorized purpose and the
objective ofthe assessment.
2. CU//FOUO) Approval to Initiate a Full Investigation: FBIHQ CMS will direct the
initiation of full investigations based on Positive Foreign Intelligence Requirements.
3. (U/IFOUO) Approval to Initiate an Assessment or Full Investigation Involving a
Sensitive Investigative Matter: The initiation of either an assessment or full
investigation to collect positive foreign.intelligence involving a sensitive investigative
matter must have prior CDC review, SAC approval and the appropriate FBIHQDI
Section Chief approvaL

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B. (U) Notice
1. (U/IFOUO) Notification to DO] is not·required when an assessment to collect
information relating.to a matter of foreign intelligence interest responsive to a positive
foreign intelligence requirement is initiated.

2. (UI/FOUO) Notification to DOJ is required when a full investigation to collect
infoITl!ation responsive to a foreign intelligence requirement is initiated. 'Notice must be
f0I!Varded. from;FBIHQ eMS to the DOJ NSD as soon as.practicable out no later than
30 calendar days after the initiation of th.e investigation. (AGG-Dom, Part II.B.5)
C. (U) Duration

(U/IFOUO) A foreign intelligence assessment and full investigatiot} rpay continue for as long
as necessary to achi~ve its purpose and objective if an assessment, or until the requirement is
met in a full investigation.
D. (I) File Review
1. (UI/FOUO)Assessments: Foreign.inteUigence assessments require recurring 90 day file
reviews of the assessment file a!1d any sub-file by the SSNSIA. File.reviews for
probationary agents must be conducted at least every 60-c:!ay~. Th~ fi!e revI~wmust:

a. (tJliFOUO) Evaluate the progress made toward the achievement of the authorized
purpose and objective;
b. (UI/FOUO) Determine whether it is reasonably likely that information may be
obtained that is relevant to the authorized objective, thereby warranting ~ continuation
of the ass~ssment;
c. (UlIFOUO)-Determine whether the Field Office has appropriate access and ability to
collect positive foreign intelligence in response to a requirement that ha~ been
accepted by FBIHQ 01; and .
d. (UI/FOtJO) Determine whether the assessment should be terminated.
2. (U/IFOUO) Full Investigations: Supervisory file reviews must be ~onducted at least
every 90 days in accordance with Section 3.4. File reviews for probationary agents must
be conducted. at leastevery 60~days.
.
E. (U) Closing

(U//FOUO) Upon its deterrpination or at the request of the field Office, oilly FBIHQCMS
may close an assessment or. full investigation.
F. (U) Anitual Letterhead Memorandum
I. (UI/FOUO) Field Office Responsibility: All FIGs must submit an a!1Ilual-report on

each posit.ive foreign intelligence full investigation that was open for any period oftime
during the past calend~r year. This. report is due to FBIHQ eMS no later than January
30th of the calendar year following each year during which a full investigation is open
and must consist of the following:
.a. (UI/FOUO) The Positive Foreign Intelligence Requirement to which the
investigation was responding;

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b. (U//FOUO) All methods of collection used;
c. (UIIFODO) All sensitive matters encountered;
d, (lJIIFOUO) A list of all IIR~ by number issued based on information collected
,
during the investigation;
e. (UffFOUO) A summary of the positive foreign intelligence collect~d; and
f.

(UfIFOUO) The date the full. investigation was opened and, if applicable, the date
closed.

(UI/FOUO) These reports should be submitted by electronic communication. The EC
. must be uploaded into ACS in a file number and in the applicable Foreign Intelligence
Collection Program (FICP) case files as designated in the Dr PG.
2. (UIIPOVO) FBIHQ Responsibility: FBIHQ CMSmust compile dat~ from each Field
Office regarding the scope and nature of the prior year's' positive foreign intelligence
collection program. The FBIHQ CMS must submit an annual comprehensive report of.
all' activity described above to. DOJ NSD no later than April 15t ofeach year. The report
must include the following information:

a. (UI/FQlJQ) The Positive Foreign.IntelligenceReqiIirement towhich"the.
investigationwas responding;
b. (UffFOUO) All sensitive matters; and
c. (UIIFOUO) The date the full investigation was opened and closed (if applicable).

9.P: (D) Retention oflnformation
(UIIFOUO)FBIHQ qvlS must maintain a database or records systems trat permits t,he prompt
retrieval of the status of each positivI:: foreig!1 i!1telligence collection full investigation (open or
closed), the dates of opening and closing, arid the basis for the full investigation.

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10." (U) Sensitive Investigative Ma:tter / Academic Nexus
10.1. (U) Overvie..v
(U) CertaIn-investigative matters should be brought'to the attention of FBI management and DOJ
officials because of the possibility of public notoriety arid sensitivity. Accordingly, ~ssessments
and predicated investigations 'involving""sensitive investigative matters" have special:approval
an~ reporting req.uirements.
'
.
10.2. (D)-Purpose, Scope"and Definiti9ns
(UIIFOUO) A sensitive investigative matter is defined as an investigative matter involving the

activities of a domestic public official or political candidate (involving corruption or a threat to
the national security), religio~s or political organizatiQn or individual prominent in such an
organization, or news media, or any other matter which, in the judgment of the official
authorizing an investigation, should be brought to the attention of FBI Headquarters and other
DOJ officials, (AGG-Dom, Part V\J.N.) As a matter of FBI policy, "judgment" means that the
decision of the authorizing official is discretionary. Descriptions for each of the officials and
entities contained in the sensitive investigative matter definition are a.s follows: .
A. (UIIFOUQ)p'o!!1e~tic PublicOfficial-Adomesticpubilc 'official is an individual elected or
appointed to a position of trust in a federal, state, local or tribal governmental entity or
political subdivision thereof: A matter involving a domestic public official is a "sensitive
investigative matter" if the assessment or predicat~d investigation involves corruption or a
threat to the national security.
B. (UIIFOUO)J>olitical candidate-A political candidate is an individual who is seeking
election to, ,or nomination for election to, or who has authorized others to explore on'his ,or
'her behalf the possibility of elec~ion to, an office in a federal, state, local or tribal
governmentaL entity or political subdivision thereof. A~ with domestic public offiCials, a
matter involving a political candidate is a sensitive investigative matter if the assessment or
predicated investigation involves ~orn.iption or a threat to the national security.
C. CUIIFOUO) Political or2anization or individual prominent in such an organization--:..'"

D. (UIIFOUO)

Reli~i9us organization or jndi~jdtial prominent in such an organizatio~

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E. (U//FOUO) Member ofthe media or a news or2:anization-l

F. ,(U/iFoUO) Academic Nexus-I'

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(U//FOUO) The sensitivity related to an academic institution arises from the American
tradition of "academic freedom" (e.g., an atmosphere in which students and faculty are free
to express unorthodox ideas and views and to challenge conventional thought without fear of
repercussion). Academic freedom does not mean, however, that academic institutions are off
limits to FBI investigators in pursuit of information or individuals of legitimate investigativ~
interest.
(u//FOuml
.
.... " - . .
..
l-:se~e:-:t:;:h-:e-:ci':la:-:s:-:si'L:fi~e':id~a~pp::-e::n::drr.ix::-·.-·"""'---'-------------

I

I

G. CUi/fOUO) Other Matters-Any matter tpat in thejudgment of the official authorizing' an
investigation that should be brought to the attention ofFBIHQand Other Department-of
Justice officials. As a matter of FBI policy, ''judgment'' means that the decision of the
authorizing official ~s discretionary.
10.3.

(U/IFOYO) Factors to Consider When Initiating or Approving an Investigative
Activity Involving a SensItive Investigative Matter

(UI/FODO) In addition to the standards for approving investigative activity in Sections 5; 6, 7
and 9, the follo.wipg factors should be considered by the: (i) FBI employe.e who seeks to initiate
an assessment or predicated investigation involving a sen.sitive investigative matter; (ii) CDC or
OGC when reviewing such matters; and (iii) approving official in determining ·whether the
assessment or predicated investigation involving a sensitive investigative. matter should be
authorized:
A. (U//FOUO) Seriousness/severity of the. Violation/threat;
B. (UlIFOUO) Significance of the information sought to the violation/threat;
C. (U//FOVO) PrQbability that the proposed course of action will be successful;
D. (UI/FODO) Ris!<'ofpublic exposure, and if there is stich a risk, the adverse impact or th~
perception of the adverse impact on civil liberties and public confidence; and

.1::. (U//FOUO) Risk to the national security or the public welfare if the proposed course of
action is not approved (i.e" risk.of doing nothing).
.(UI/FOUO) In the context ofa seI1sitive investigative matter, particular car~ should be taken
when.considering·whetherthe planned course ofa~tion is the least intrusive method feasible.

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10.4. (U) Duration, Approval, Notice and Documentation
(UIIFOUO) The following are required approval and notification levels for investigative
activities involving sensitive investigative matters:
A. (U1/FOUO) Initiated by a Field Office:
. (ltlIFOUO) Assessment: An FBI employee may initiate assessment type one and f;wO
activities, as descriped in Section S.6.A.I' and 2 (prompt checking of le~ds), w\thout prior
supervisory approval: However, because assessments involving'sensitive inveStigative
matters must be brought to the attention of FBI. Field Office management, CDC review and
SAC approval to continue the assessment must be acquired as soon as practicable. For
assessment types 3, 4 and 6 assessments (see DIDO Section 5.6.A.3. 4 and 6) involving a
sensitive investigative matter, prior CDC review and SAC approval is required. For
assessment types 3, 4, and 6, as described in Section 5.6.A.3. 4 and 6, if a sensitive
investigative matter arises after the initiation of an assessment, investigative activity must
cease Ul1ti~ CDC review and SAC approval is acquired.
(U//FOUO) Assessments involving a sensitive investigative matter do nofrequire notification
to DOJ or the United States Attorney. (AGG-Dom, Part II.B.5.a) All positive foreign
. intelligence collectionassessinents, r¢gardless ofwhethertheyjnvolve-a sensitive
investigative matter, require prior FBIHQ CMS approval. If a sensitive investigative matter
arises after the initiation of a positive foreign intelligence collection assessment, n9tice must
be provided to FBIHQ CMS.
0

(U/IPOUO) Predicated Investigation:- For all predicated investigations involving a sensitive
investigative matter, prior CDC review and SAC approval is required, and the Field Office
must provide written 'notification to the appropriate FBIHQ pnit Chief and, Section Chief.
Additionally, the Field Office mu~ provide written notification to·the United'States Attorney,
or the appropriate-EBIHQ Section must provige written notification to the DO] Criminal
Pivisionor NSD, as soon as practicable, but no later than 30 calen
. .. .on of
the predicatedinvestjgatioo The notiCy must identifyl..,..-.,...,.:.'~-- r.------t-....
j(see classified appen IX or'

'
,
.
I'------ -I

-

'-----

(U/IPOVO) Ifa sen~itive investigative matter arises after the initiation-of a predicated
investigation, investigative. activity must cease until CDC review and SAC approval is
acqu~red and notice is furnished to the FBlHQ Unit and Section as specified.above.

B. (O/IPOVO) Initiated by FBIHQ:
(U/IPOUO}Assessment: For assessment types 3, 4 and.6, as described in Section 5.6.A.3. 4
and 6, involving a sensitive inv.estigative matter, OGC review and Section Chief approval is
required. Wa sensitive investigative matter arises after the initiation of an assessment,
investigative activity must cease until OGC review and Se~tion Chief approval is acquired.
(O/IPODO) Assessments involving a sensitive investigative matter do not require notification
to DOJ or the United States Attorney. (AGG-Dom, Part 1I.B.5.a) All positive foreign
intelligence collection assessments, regardless of whether they involve a sensitive
investigative matter, require prior FBIHQ CMS approval. If a sensitive inv~stigative m~tter
.arises after the initiation of a positive foreign intelligence collection assessment, notice must
be provided to FBIHQCMS.

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(UI/POUO) Predicated Investigation:· For predicated investigations involving a sensitive
investigative matter, aGC review, Section Chief approval, and written notification to the
United States Attorney, DOJ Criminal Pivision or DO] NSD is required, as soon as
practicable, but no later than 30 calendar days after the initiation of such an investigation.
The notice ~st identify!
•
'
j(see,classified appendix\
j

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I

(U/fFOUO) If a se~sitive investigative matter arises after the initiation of a predicated
investigation, investigative activity must cease until odc review and Section Cliief approval
is acquired and notice is furnished as specified above.
10.5. (UIIFOUO) Distinction Between Sensitive Investigative Matter and Sensitive
Circumstan<:e
.
(UIIFOUO) The term "sensitive investigative matter" should not be confused with the term
"sensitive ci,rcumstance" as that term is used in undercover operations. A "sensitive
circumstance" relates to an under~over operation requiring FBIHQ approval. A comprehensive
list of sensitive circumstances for criminal activities is contained in the Attorney General's
Guidelines on FBI Undercover Operations and in Section 11 of the DIOG for national securi5
matters. The C r i m i ' . .
.
iew Comrp.itt~e (CUORe) andl
'." .
,
.
must review and approve undercover" .., .
.ons at !nvo ve sensitive circumstances. The detaIled poUcy for undercover operations is
described in DIOG Section 11.8, the Field Guide for Undercover and Sensitive Operations
(FGUSO), and the FBIHQ substantiv~ Division program implementation guides.

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10.6. (U/IFOUO) Sensitive Operations,Review Committee

(UlIFOUOJ

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DATE 07-08-2009 BY UC 60322 LP/STP/SZ

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11. (U) Investigative Methods
11.1. (U) OverView
(U/IFOUO) The conduct of assessments, predicated investigations and other activities authorized
bythe AGG-Dom,may prese~t choices between the use of differentinvestigative methods
(fonnerly investigative "techniques") that are each operationally sound and effectiv'e, but that are
more or less intrusive, considering such factors as the effect on the privacy. and ciyi},liberties of
individuals ~md the potential damage to reputation. The least intrusive method feasible is to be
used in such situations. However, the choiCe of methods is a matter ofjudgment. The FBI is
authorized to use any lawful method consistent with the AGG-Dom, even if'intrusive, where,the
~egree of intrusiveness is warranted in light of the seriousness ofa criminal or'national security
threat or the strength of the infonnation indicating its existence, or in light of the importance of
fOreign intelligence sought to the United States' interests. (AGG-Dom, Part I.C2.)
(U) The availability of a particular investigative method in a particular case may depend upol).
the level of investig~tive activity (assessment, preliminary investigation, full investigation,
.
assjstance to other agencies),

H.l.1.

,(U) Least Intrusive MethOd

(U) The AqG-Dom requires that the "least intrusive" means or method be considered an9-if
operationally sound'and effective-useg to obtain intelligence or evidence in lieu oXmore
intrusive meth9ds. This principle is also reflected in Executive Order 12333, which governs the
activities of the Ul1ited States intelligencecoinmunity., The concept of least intrusive me~hod
applies to the colle~tion of intelligence and evidence.
(l))Selection oftheJeast intrusive means is a balancing test as to wl1ich FBI employees mustuse
common sense and sound judgment to effectively execute their duties while -mitigating the
poterttiiil negative impact on the privacy and civill1berties of all people encompassed within the
assessment or predicated investigation, including targets, witnesses, and victims. This ,principle
is not intended to discourage investigators from seeking relevant and necessary intelligence,
inforination, or evidence, but rather is intended to encourage investigators to choose the least
, intrusive-yet stilLeffective-means fn;>m the available options to'obtain the materiaL
Additionally, FBI employees should operate openly and consensually with United States persons
to the extent practical>le when collecting foreign intelligence.that does not concern criminal
activittes or thre,ats to the na~ional.security.
.

(D) Section 4.4 describes the least intrusive methods con~ept and the standards to be applied by
FBI employees.

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11.2. (U) Authorized Investigative Methods in Assessments and Predicated Investigations

CU) The below listed investigative methods may be used in assessments and predicated
investigations. The use and/or di$semination of information obtained by the use of all authorized
i~vestigative methods inust comply with the. AGG-Dom and DIDO Section 1'4.

11.2.1.

(U) Authorized Investigative Meth?ds in Assessments
(AGG-Dom, Part ILAA.)

(UIIFOUO) Ail FBIemployee must document on the FD-71, or in Guardian, the use of or the'
request and approval for the use of authorized investigative methods in type 1 and 2 assessments
(see DIDG Section 5.6.A.I and 2). By exception, certain assessment type 1 and:2 situations may
require the use of an EC t9 document the use and approval of certain inyestigative methods. All
authorized investigative methods 'in type 3, 4, and 6 assessments,(see DIOG Section 5.6:A.3. 4
and 6) must use an EC to document the use of or the request and approval for the use of the
applicable·investigative method. For a detailed description ofthe~e methods see DIOG Section

5·9·
A. (U) Obtain publicly availabieinfonnation.
B. (U)Access and examine FBI and other Department of Justice records. and obtain information
.
from any FBI or oth~r Department of Justice personnel. .
C. (U) Access and examine records maintained by. and request information from. other federal.
...
state. local. or tribal. Or foreign governmental entities or ~gencies.
D.

em Use online services 'and

~esources

(whether non-profit or commercial).

E. (D) Use and recruit human sources in conformity with the Attorney General's Guideli'nes
Rega'rding the Use of FBICorifidentlal Human Sources.
F. (U) Interview or request information from members ofthe public and private entities.
G. (U) Accept information voluntarily provided by governmental or private entities.
H. (U) Engage in observation and conduct physical surveillance not requiring a court order.
L (UIIFOUO) Grand jury subpoenas'for telephone or electronic mail subscriber information
.
during type I and 2 assessments.. '
(UIIFOyO) Note: In assessments, supervisory approval i~ required prior to use of the following
investigative methods: certain interviews, tasking ora' CHS; and physical surveillance not
requir~ng a court order. During predicated investigations the supervisory approval.requirements
for these investigative methods may not apply.

11.2.2.(U) Authorized Investigative Methods in,Preliminary investigations
(AGG-Dom, Part V.A.I-IO)
(D) In preliminary investigations the authqrized methods include the following: [AGG-Dom.
Part 11.8. and Part V.A.]
.
A. (U) The investigative methods approved for assessments.
B. (U) Mai I covers.

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C. (U) Physical searches of personator real property where a warrantor court order is not
legally required because there is no reasonable expectation of privacy (e.!!.. trash covers).
D. (U) Consensual monitoring of"communications. including consensual computer monitoring.
subject to legal review bv the CDC or the OGC. When a sensitive monitoring circumstance is
involved, the monitoring'must be approved by the DOJ Criminai Divisi9n or, if the
investigation concerns a threat to the national security or foreign intelligence, by the.DOJ
National Security Division.
.
(UIIFOUO) Note: For additional information, see the classified appendix.
. (U//FOUO) Note: For those state, local and tribal governments that do not sanction or
provide a law enforcement. exception available to the FBI for one-party ~onsent recording of
communications with persons within their jurisdiction, the SAC must approve the con~ensual
monitoring of communications as an OIA. Prior to the SAt authorizing th~ QIA, one-party
consent must be acquired. The SAC may delegate the,OIA approval authority to an ASAC or
SSA.
H. (U) Use of closed-circuit television. direction finders. and other monitoring devices. subject .
to legal re~iew by the CDC or the OGC. (The methods described in this paragraph usually do
not·require court orders·or warrants.urilesstheyinvolv.e an intrusioninto an area where th~re

is a reasonable expectation of privacy or non-consensual monitoring of communicatiops, but
legal review is ~ecessary ,to ensure compliance with all applicable legal requirements.)
F. (U) Polygraph examinations.
G. (0) Undercover operations. In investigations relating to activities in violation offederal
criminal law that do not concem threa~ to the national secyrity or foreign intelligence,
undercover operations must be carried out in conformity with the Attorney General's
Guidelines on Federal Bureau of Investigation Undercover Operations. In investigations that
concern ~hreats to the national security or foreign intelligence, undercover operations
involving religious or political organizations must be reviewed and approved by FBI
Headquarters, with participation by the DOJ National Security Division. in the review process.
H. (U) Compulsory process as authorized.by law. inCluding grand jury subpoenas 'and other
subpoenas, NationaLSecurity Letters (15 U.s.C. §§ l681u, 1681v;t8 U.S.C. § 2709; 12
U:S,C.·§ 3414[a][5][A]; 50 U,S.C. § 436, and FISA orders [50 U.S.C. §§ 1861-63]).

1. (U) Accessing stored wire and electronic communications and transactional records in
conformity with chapted21 of title 18, United States Code (18 U,S.C. §§ 2701-2712).

.1. (U) Use of pen registers and trap and trace devices in conformity with chapter 206 of title 18.
United States Code (18 U.S.C. §§ 3121-3127) or FISA (50 U.S.C. §§ 1841-1846).

11.2.3.

(U) Authorized Investigative Methods in Full Investigations

(AGG-Dom, Part V.A.l1;.Q)
(U) In fulllnvestigations, to include enterprise investigations, all investigative methods approved
for as~essments and preliminary investigations may be .used. In addition, the three investigative
methods Iisted.below may only be used'in full investigations:

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A. (U) Electronic surveillance in conformitJ' with chapter I 19 of title 18. United States Codc (18
U.S.C~ §§ 2510-2522), or the Forei gn Intelligencc Surveillance Act. or ExecutiveOrder

12333 § 2.5.
B. (UIIFOUO) Physical searches. includin~ mail openings. in conformitv with Rule 41 of the
Federal Rules ofCriniinal Procedure. the Poreign Intelligence Surveillance Act. or Executive
Order' 2333 § 2.5. Note: For additional information regarding. certain searches, see the
cla,ssifled appendix.
C. (U) Acquisition offorei,,:n intelligence information in conformity with Title VIl ofthe FISA.
(UIIFOUO) Note: Not all i~vestigative methods are authorized while collecting' foreign
intelligence as part of a full investigation. See DIOG Section 9 for more inforJl?ation;

U.2.4.

(U) Particular Investigative Methods

(UIIFOUO) All lawful investigative methods may be used in activities under the AGG-pom as
authorized by the AGO-Dam. Authorized memods include, but are not limited to, those
identified in the rest ofthis.section. In some instances they are subject to special restrictions or
review or approval reqJ.liremenis. (AGG-Dom, Part VA.)

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11.3. (U) Investigative Method: Mail Covers
11.3.1.

(U) Summary

(U) A mail cover may be ~ought only in a predic~ted investigation when there exists reasonable
grounds to demonstrate that the mail cover is necessary to: (i) protect the national security; (ii)
locate a fugitive; (iii) obtain cvidenc~ of the commission or attempted commission of a federal
crime; or (iv) assist in the identification of property, proceeds or assets forfeitable because ofa
violation of criminal law. 39 C.F.R. § 233.3(e)(2).

(U//FODO)r

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.r

(U)f

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.1
.. lAsa'
ge.ner;il rul~, affiaJl cover 10 the APO/FPO system overseas may only be ordered by a mIlItary
authority competent to order searches and seizuresfor law enforcement plirposes, usually a
commanding officer. See DoD 4525.6-M, the DoD Postal ManuaL

I

(U!iFOUO) Appi icatioo:

11.3.2.

;----------F

I

(U) Legal Authority

A. (U) Postal S.ervice Regulation 39 C.F.R. § 233.3 is the sole au~hority and procedure for
initiating a mail cover and for processing, using and disclosing information obtained from a
mail cover;
'B. (D) There is no Fourth Amendment protection for information on the outside of a piece of
mail. See, e.g., U.S. v. Choate, 576 F.2d 165, 174 (9 th Cir., 1978); and D.S. v. Huie, 593 F.2d
14 (5 th Cir., 1979); and,
' .

C. (U) AGG-Dom, Part V.A.2.

11.3.3.

(U) Definition ofInvestigative Method

(u) A mail cover is the non-consensual recording of any data appearing on the outside cover of
any sealed or unsealeq mail matter to obtain information in order to:

A. (D) Protect the national security;
B. (U) Locate a fugitive;
C. (U) Obtain evidence of commission or attempted commission of a federal crime;
D. (U) Obtain evidence of a violation or attempted violation of a postal sta,t.ute; or
E. (U) Assist in the identification of property, proceeds or assets forfeitable under law.
39 C.F.R. § 233.3(c) (1).

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(V) In this context, a "recording" means the transcription, photograph, photocopy, or other
facsimile of the image ofthe outside cover, envelope, or wrappers of mailed matter. A warrant or
court order is almost always required to obtain the contents of any class of mail, sealed or
unsealed.
\

11.3.4.

(D) Standard for Use and Approval Requirements for Investigative Method

(l)) The standard to obtain Ii mail cover is,established by the Posta~ Service regulation:. The Chief
Postal Inspector may order a maii cover "[w]hen a written request is received from aI1Y law
enforcement agency in which the requesting authority specifies the reasonable grounds to
demonstrate the mail cover is necessary'to:
.
•

(V) Protect the national security;

•

(V) Loca,te a fugitive;

•

(V) Obtain info.rmation regarding the commission or attempted com,mission of a crime; or

•

(V) Assist in the identification of property, proceeds or assets forfeitable because of a
violation of crirhinallaw." 29 C.F .R. § 233.3(e)(4).

(V/F0U0)-National Security Mail.Cover: AnationaLse~urityIlla,ilcover request must be
approved by the Director or designee, currently only the EAD of the National Security Branch.
All requests for national security mail covers must be reviewed by the Field Office SSA
according to th~ below-criteria. A national security mail cover sought "to protect the national
security" includes protecting·the Vnited States from actual or threatened attack or other grave,
hostile act; sabotage; international terrorism; or clandestine intelligence activities, including
commercial [economic] espionage by foreign powers or their agents.
o

(l)//FOVO) After being approved by the SSA, the Field Office must.transmit the mail cover

letter reguest by EC, with the draft letter as an attachmeht,to the National Security Law Branch
(NSLB) for legal review and concurrence. Upon review and concurrence, the NSLB must
transmit the letter request for signature approval to the BAD, National Security Branch~ or, in his
or her absence, 'to the Director.
(V//FOVO) Criminal 'Mail Cover: A criminal mail cover request may be'approved'by the Field

Office SSA. The SSA may approve a request for a mail cover ifthere are reasonable grounds.to
demonstrate that the mail cover is necessary to assist in efforts to: (i) locate a fugitive; (ii) obtain
information regarding the commission or attempted commission of a federal crime; or (iii) to
assist in the id~mtification of property, proceeds or assets forfeitable because of a violation'of
criminal law.
'
(V//FOUO) SSA review and or approval of a national security or criminal mail cover
request: Approval of,any mail cov~r request or an extension is conditioned on the' following
criteria being met:
A..

(V//fOUO~

I

,

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--

B. '(UI/FOUO)I

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i

c.

I

(U//FOUO)I

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D. (U//FOUO~
,-

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E. - (U//FOUO~

F.

I

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.

]

(U//FOl!°l

I

h2.

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KNote:
Under postal regulations, a mail cover must not include matter mailed. between the mail
,cover subject and the subje<:t's attomey,.unless the attorney is also a subject under the
investigation.}
-

..

G. (U//FOuoj

..

_.~

I

.

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-. I

H. (U//FOUO)I

I

b2

I

I. (U//FOUO)I

b2 .

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I
.
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--

(U) Emergency Requests: When time is of the essence, the Chief Postal Inspector, or
.. designee, may act upon an oral requestto be cc;mfirmed QY the requesting authority, in
writing,within three caiendar days. Information maybe released prior to receipt of the

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written request only when the releasing official is satisfied that ail emergel1cy situation exists.
.
39 C.F.R. § 233.3(e)(3).

(U) An "emergency situation" exists when the immediate release of infonnationis required
to prevent the loss of evidence or when there is a potential for immediate physical hann to
persons or,propel"t!'. 39 CJ{R. § 23~.3(c)(10):
11.3.:;.

(U) Duration of Approval

A. (U) National Security: A national security mail cover is limited to 120 days from the date
the mail' cover is initiated. Extensions can only be authorized by the Chief Postal Inspector or
his designee at the National-Headquarters of!he Office of the Chief Postal Inspector. 39
C.F.R. § 233.3(g)(6).
B. (U) Criminal mail-cover~ except fugitives: A mail cover in a criminaJ case ;s limit~d to no
more than 30 days, unless adequate justification is provided by the requesting authority. 39
C.F.R. § 233.3(g)(5). Renewals may be granted for additional 30-day periods under the sa!Jle
conditions and procedures applicable to the original request. The requesting authority must
provid~ a statement of the iiwestigative benefit of the mail cover and anti<?ipated benefits to
bederivedJrom the extension.
'
C. (U) Fugitives: No mail cover instituted to l.ocate a fugitive m~y reinain in force fodong~r
than 129 continuous days unless personally approved for further extension by the Chief
Postal Inspector or hislher designees at National Headquarters. 39 C.F.R. § 233.3(g)(6).
D. (U) Exception for Indicfmen~s: Except for fugitive cases, no mail cover may,remain in
force when an information has been filed or the subject has been indicted for the matter for
which the mail cover has been requested. If the subject is under investigation for further
criminal violations, or a-mail cover is required to assist in the identification of property,
proceeds or assets forfeitable because of a violation of criminal law, a new mail cover order
mustbe requested. 39 C.F.R.§ 233.3(g)(7).
11.3.6.

(U) Speci(icProcedures

(UI/FOUO) The Postal Regulation requires that physical storage of all reports issued ,pursuant to
a mail cover request to be at the discretion of the Chief Postal Inspector. 39 C.F.R. § 233.3(h)(1).
Accordingly, 'FBI employees:must conduct a timely review of mail cover document~ received
'from the USPS. A copy ,of the signed mail cover request and the signed transmittal letter must be
maintained in the inv.estigative case file.

I(U//Fouof

1;>2

'

1.:........:...------'------',....-------:-------:----_

11.3.7~

(U) Compliance and Monitoring

(UlIFOUO) FBI employees must conduct a timely review of mail cover information received
fromtqe USPS for any potential production of data beyond the scope of the requested mail cov.er
("overpro<iuction") and either destroy or return the overproduction't9 the assigned USPS
represent~tive noting the reason for the return.

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11.4.

(U) Investigative Method: Physical searches of personal or real property where a
wa'rrant or court order is not legally required because there is no reasonable
, expectation of privacy (e.g.J

I

11.4.1.

~ot::.;o:::.:t::.:h.:::.erw~i~se.....,rohibitedby

L....._ _"""T'"
IILB.2.;3. L-"""'----

AGG-Dom, Part

""'--_~---~

(U) Legal Authority

A. (U) AGG-Dom, Part V.A.3,
B. (U) Fourth Amendment to the United States Constitution

U.4.3.

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(U) Summary

(U//FQUO) Application: In predicated investigations; the FBI may'conduct physical searches
of personal or real property where a warrant or court order is not Ie all
uired because there is
no reasonable ex ectation of rivac

11.4.2.

b2

(U) D(lfinition of Investigative Method

(U) The'Fourth Amendment to the United States Constittition prevents the -FBI from conducting
unreasonable searches and seizures. It also generally requires a warrant be obtained if the search
will intrude on a reasonable expectatiQn of privacy. To qualify as a "reasonable expec~tion of
prPv~cy," the individual must have an actual subjective expectation of privacy and'society must
be prepared to recognize that expectation as objectively reasonable. See Katz v. United States,
389 U.S. at 361. Ifan individual has a reasonable expectation of privacy, a warrant or order
issued by ~ court of competent jurisdiction or an exception to ·the requir~ment for such a warrant
or order is required before a search m'ay be conducted. Physical searches of personal or real
property may be conducted without a search warrant or court order if there is no reasonable
expectation of privacy in the property or area. As a general matter, the~e is no reasonable
expectation of privacy in areas that are exposed to public view or that are otherwise available to
the public. A reas'onable expectation of privacy may be terminated by an individual abandol?ing
property, setting trash at the edge of the curtilage or beyqnd for collection, or when a private
party reveals the. contents of a package.
(U) Examples of Searches not Requiring' a Warrant because there is no Reasonable
Expectation of Privacy: (i) VelJ,icle identification numbers or persqnalproperty that is exposed
to public view and may be seen when looki~g througJ't the window of a car that is parked in an
area that is open to and accessible by members of the public; (II) neither the examination of
books and magazines in.a book store nor the purchase of such.items is a search or seizure under
the Fourth Amendment. See Maryland v. Macon, 472 U..S. 463 (1985); and (iiD a deliberate
ov.erflight in navigable air. space to 'photograph marijuana plants is not a searc~, despite the
landowners,subjective expectation of privacy. See California v. Ciraolo, 476 U.S..207 (1986).
(D) Whether an area is curtilage is determined by reference to four factOl;s: (i) proximity of the
area in question to the home; (ii) whether the area is within an enclosure surrounding the home;
(iii) nature of the use to which the area is put; and (iv) steps taken to protect the area from
observation by passers-:-by.

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(U) An area is curtilage ifit "is so inti!llately tied to the home itself that it should be placed under
the home's 'umbrella' of Fourth Amendment protection."

11.4.4.

(UlIFOUO) Standards for Use and Approval Requirements for Investigative
Method

(UI/FOUO) No supervisory approval is required for the use of this method. However, ifthere is a
doubt as to whether a person has a reasol1able expectation of privacy in the area to be searched,
consult with the CDC or-FBI Office of the General Counsel to determine whether a search
warrant is required. Use of this method'must be doqumented in the case file.

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(U) Investigative Method: Consensual Monitoring of Communications, including

consensual computer monitoring
11.5.1.

(U) Summary

(U) Consensual monitoring of communications may be used in predicated investigations. Its use,

including consensual computer monitoring, requires review by the CDC or the OGC:.(AGG.
Dom, Part V.AA)
(V//FOUO) Application: This investigative method may be used in national securitY
investigations, criminal investigations and positive foreign intelligence collection cases, and for
assistance to other agencies when it i~ not otherwise prohibited by AGG-Dom, Part III.B.2-3.
This method cannot be used during an assessment
CUI/FOUO) Note:-For those state, local and tribal governments that do not s;lnction or provide a
law enforcement exception available to the FBI for one-party qmsensual recording of
communications with persons within their jurisdiction; the SAC must approve the consensual
monitoring of communications as an alA. J,'rior to the SAC autp.orizing the alA, one-party
consent must be acquired. The SAC may delega~e the OIA approval ~uthorit' to an ASAC or
SSA.
11.5.2.'

(U) Legal Authority

A. (U) The Fourth Amendment to the United States Constitution and case law interpreting die
same;

B. (U) 18 U.S.C. § 251 t(2)(b) & (c);
C. (U) The Foreign Inteiligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801 et seq.,
defines "electronic surveillance"'to include only those communications "in which a pers~m
has a rea~~nable expectation of privacy and a warrant would be required for law
enforcement purposes." 50 U.S.C. § 1801 (t). If a party to the communicatiot:I has cons~nted
to monitoring, a Title III or FISA court order i~ not required to monitor those consensual
communications; and
D. (U) Computer Trespasser Exception - 18 U.S.C. § 2511 (2)(i).

11.5.3.

(U) Definition of Investigative-Method

(U) Consensual monitoring is: "monitoring of communications for which a court order or
warrant is not legally-required'because of~he consent of a party to the communication." (AGGDom, Part VILA.) Consensual, monitoring includes the interception of the content of
communications that typically fall into one of three general categories:
A. (U) Cqnventional telephone communications or other means oftransmitting the human voice
through c~l:>le, wire, radio frequency (RF), or other similar connections;
B. (U)Oral communications, typically. intercepted through the use of devices that monitor and
record oral conversations (e.g., where a body transmitter or recorder or a fixed location
transmitter or recorder is used during a face-to-face communication in which a person would
have a reasonable expectation of privacy but for the consent, of the other party); and

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C. (l)) Communications transmitted between parties using computer protocols, such as e-mail,
instant message, chat sessions, text messaging, peer~to-peer communications, or other
"electronic communications," as that tenn is defined in 18 U.S.C. § 2510(12).
(U) The consensual monitoring of cominu'1ications, hlcluding consensual computer monitoring,
,is subject to legal review by the CDC or. the OGC. (AGG-Dom, Part V.A.4)
,(U) The computer trespasser exception to the wiretap statute, ~ 8U~S.C. § 2511 (2)(i),.relies on

the consent of the computer owner-operator and limits the monitoring·to only the '.
communicatio,ns of the trespasser. The statute includes additio~al'limitations on the use of this
provisi9n;
11.5.4.

(U) Standards for Use and Approval Requirements for Inv~tigativeMethod

A. (D) General Approval Requirements
(U(IFOUO) Except a~ provided below in Section l·i .S.4.B, an SSA may approve the
consensual monitoring of communications, including consensual computer monitoring of
communications, if the infonnationlikely to be obtained is relevant to an ongoing
investigation. SSA approv~1 is conditioned on the foHowing criteria being met and
.documented using the ED-759:
o

1. (U1/FODO) Reasons for M9nitoring: There is sufficient factual infonnation
supporting the need for the monitoring and that the monitoring is related to the
investigative purpose, including, if applicable, a citation ~o the principal criinimll statute
involved;
2. (UI/FODO) Legal Review: Prior to the initiation of the consensual monitoring, the
CDC or the OGC concurred that consensual monitoring under the facts of the
investigation is legaL Whenever the monitoring circumstances change substantially, a
new £D-759 must be executed and the CDC or,OGC must be recontacted to obtain a
new concurrence. (AGG-Dam, Part V.A.4.) The following are examples of sUQstantial
ch~nges in monitoring circumstances which require a new FD-759: a different
consenting party, new interceptees, or a change in the location of a fixedmonitoting
device.'
.
.
3. (U) Consent:' A party to the communication has consented to the monitoring and that
consent has been documented according to the below-procedures. Consent may be
express or implied. In consensual computer monitoring, for example, implied consent
to monitor may exis~if.users are given notice through asigh-on banner that all users
must actively acknowledge (by clicking through) or thro~gh other means of obvious
notice of possible monitoring. Consent to monitor pursuant to the computer trespasser
exception is'not provided by a party to the communication per se, but is instead,
provided by the owner, operator, or systems administrator ofthe computer to, be
monitored.
4. (UlIFOUO) Subject: The monitoring will not intentionally·jnclude a third-party who is
not of il).terest:to the investigation, except for unavoidable or inadvertent overhears.

5. (U/IFOUO) Location of device: Appropriate safeguards exist to ensure that the
consenting party remains a party to the communication throughout the course of
monitoring. If a fixed-location monitoring device is being l,lsed, the consenting party

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has been admonished alJdagrces to be present'during the duration of the monitoring
and, if practicable, technical means are being used to activate monitoring only when the
consenting party is present.
'
6. (UI/FOUO) Location of monitoring: If monitoring will occur outside a Field Office's
tetritory,.notice h.as been provided to the SAC or ASAC of each Field Office where the
~onitoring is to occur, and that notice has been documented in the. case fi Ie.

7. (UI/FOUO) Duration: The.request states the length oftime needed for monitor.ing.
Unless otherwise warranted, approval may be grantedJor the,duration ofthe:
i!1vestigatiort subject to a substantial change of circumstances, as described in Section
11.5.4.t\.2, above. When a "sensitive monitoring circumstance" is involved, DOJ may
limit its,approval to a shorter duration;

B. (U/IFOUO) Exceptions Requiring Aaditional Approval
I. (UliFODO) Party Located Outside the United States:
'(U//FOUO]
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2. (U) Consent of More than One Party E.equired:

(D.IIFOUO) For those states or tribes that do not sanction or provide a law enforcement
exception available to the FBI for one-party consent recording of communications with
pers.ons within their jurisdiction, the SAC must approveihe consensual monitorihg Of
communications as ~n OIA. Prior to the SAC authorizing the OIA, one-party consent
must be acquired. The SAC may delegate the OIA approval authority to a,n ASAC or
SSA.
3. (U) Sensitive Monitoring Circumstance:

(U) Requests to consensually monitor communications when a sensitive monitoriqg
circumstance is involved must be ~pproved by the 001 Criminal Division, or if the
. investigation concerns a threat to the national security or foreign intelligence collection,
by the 001 NSD. (AGG-Dom, Part V.A.4) A "sensitive monitoring circumstance" is
defined in the AGG-Dom, Part VII.O, to include the following:
.a. (D) Investigatton ofa meIllber of Congress, a federal judge, a'member of the
Executive Branch at Executive Level IV or above, or a person who has served in
such capacity within the previous two years (Note: Executive Levels I through IV
are.defined~in 5,U.S~C. §§5312~5315); .
b.. (U) Investigation of the Governor, Lieutenant Governor, or Attorney General of
any state or territory, or a judge or justice of the highest court of any state or
territory, concerning an offense'involving bribery, conflict of interest, or extortion
relll:ted to,the performance of official duties;
c. (U) The Attorney General, the Deputy Attorney General, or an Assistant Attorney
General has requested that the FBI obtain prior approval for the·use ofconsensual
. ,monitoring in a specific investigation;
d. (U) A party to the communication is in the custody of the Bureau of Prisons or the
United States Marshal Service or is being or.h~s been afforded protection in the
Witness Security Program
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(UlIFOUO) Note: See classified App~ndix G for addit.ional infonnation regarding
consensual monitoring.

e. (UIIFOUO) Procedure for Obtaining DOJ Approval For a Sensitive
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11.5.6.

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(UlIFOUO) Specific Procedures

CUI/FODO) The following procedures apply when obtaining consent
A. ,(U/IFOUQ) Documel!.ti.ng consent!

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11.5.7..

(UIIFOUO) Compliance and Monitoring

(U/JFQUO) ELSUR.program personnel must conduct regularly scheduled reviews of the FD759s approved within the Field Office to detennine whether approval was obtained. prior to
initiation-of consensual monitoting and to ensure that the monitoring occurred in compliance
with the approvals. The ELSUR Program is also responsible for indexing all individuals or
identifier.s of persons-iritercepted diIring consensual monitoring and cross-refereOl;;ing their
names or identifiers to the approved FD-759 in the investigative case file.

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11.6.

(U)Invcstigative Method: Use of closed-circuit television, direCtion finders, and
other monitoring devices (Not needing a Court Order)

(U) Note: Use bfthis method is subject to legal review by the CDC or OGC.
11.6.1. (U) Summary

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B. (U) Tracking devices use (I 8 U;S.C. §25lO[12]

[Cn

C. (0) -Rule 41 Federai- R~les of Criminal Procedure
D. (U) Fourth Amendment to the United States Constitution

11.6.3.

(UI/fOUO) Definition of rnvestigative Method

A. (V//FOUO) ,Closed Circuit Television (CCTV): a fixed.;.location'video camera that [s
typically concealed from view or that is p,lacedon or operated by ~ consenting party.
B. (UIIFOUO) Electronic Trackinl! Devices:1
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excluded from Title III requirements (18 U.S.C. § 251O[12J [CJ)..!n circumstances where a
court order is required (pursuant to FRCP Rule 41 (eJf2J[I}), ajudge ()r magistrate may
authoriZe the use of an elec~onic tracking device witl;1in the jurisdiction of the court and
outside thatjurisdIction, if the device is il}stalled in that jurisdiction. (PRep Rule 41 b[4J; 18
U.S.C.§3117.)
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eU//FOVO)

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JAn example would be using thermal-imaging to detect heat emanating from
.L.-w~it~h':"'"in-a""h:-o-m"'e to make inferences about the use of high-powered marijuana-growing lamps
inside the home (Kyllo v. United States, 533 U.S.,27 (2001».
(V) Whether an area is curtilage is determined by reference to four factors: (i) proximity of
the area in question to the home; (ii) whether the area is within an enclosure surrounding the
home; (iii) nature of the use to which the area is put; and (iv) steps taken to protect the 'area
.
from,observation by pa,s~tlr.s-l?y.
11.6.4.

(U//FOUQ). Standards for Use and Approval·Requirements for Investigative
Method

(UI/FOUO) When a video camera is physically operated as a hand-held video and is being used
in an area in which no one has a reasonable expect~tion of privacy, its use is equivalent to using
a still camera and does not require supervisory approval.
(UI/FOUO) For those situations that require SSA approval for the use of CCTV, tracking 'devices,
and other monitoring devices, SSA approval, which ('hould be documented using the FD-759,
may ~e granted ifthe following criteria have been met:
A. (VI/FOUO) Legal review and concurrence from the CDC orOGC that a court order is not
required for installation' or use of the device because there has been lawful consent, no
reasonable expectation of privacy exists,or no physical trespass necessary to install the
device. Note: Whenever circumstances change in either installation or monitoring, 'a new
legai review should be obtained to determine whether a separate authorization is necessary.
B (U//FOUO) lise of the method is.reasonably likely to achieve inv

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(U) Duration of Approval

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(UlIFOUO) To use the method, the case age~t must:
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must be documemed in the substantive investigative ELSUR file
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11.7. (p) Investigative Method: Polygraph
11.7.1.

(U) Summary

(U/IPOUO) A

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11.7.2.

(U) Legal A~thority

(D) AOO-Dom, Part V.A.6.
11.7.3~

(U//FOUO) Definition of Investigative Method

(U/IPOUO) The polygraph.is used to: (i)-aid in determining whether a person has pertinent·
knowledge of a particular matter under investigation or inquiry; (ii) aid in determining the
truthfulness of statements made or information furnished by a subject, victim, witness, CHS, or
an individual making allegations; (iii) obtain information leading to the location of evidence,
individuals or sites of offense; and (iv) assist in verifying the accuracy and thoroughness of
inforritation fumishcd-by'applicants andempioyees;

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(U/IFOUO) Note: This policy does not limit other authorized activities of the FBI, such as the
FBI's responsibilities to conduct background checks and inquiries concerning applicants ~nd
employees under federal personnel security programs.
1~.7.4.

(U/IFOUO) Standards for Use and Approval RequirementS for Investigative
Method

(UlIFOUO) An SSA may approve the use of a polygraph if:
A. (U//FOtJO)/-_--:-~--...J...---iz------:r_-L-.---___,
B. .cU/IFOVO
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C; (UlIFOUO)L11.7.5.

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(U) Duration of Approval

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11.7.6.

(UIIFOUO) Specific Procedures

(UIIFOUO) A,n.EC must be prepared requesting SSAapproval for the polygraph. If an AUSA is
assigned to the case; an FBI employee must confer with the USAO to discuss anY'prosecutorial
issues' prior to the administration 0 f a polygraph.

11.7.7.

CUI/FOUO) Compliance·alld Monitoring

(UIIFOUO) Except for polygraphs administered as part ofa backgro~nd check or as part of a'

federal'personnel security program, all polygraphs must be conducted unaer and documented'to a
substantive case file.

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11;8. (U) Investigative Method: Undercover Operations
11.8.1.

(U) Su~mury

(UI/FOUO~

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(U/IFOUO) Undercover operatJons must be conducted in conformity with The Attornev
General 's'Guidelines on Federal Bureau oflnvesligation Undercover Operations (AGG-UGO)
in. investigations relating to activities in violation of federal criminal law that do not concern
threats to the national security or foreign intelligence. In investigations that concern threats to the
national security or foreign,jntelligence, undercover operations involving religious or political
organIzations must be reviewed and approved by FBi Headquarters, with participat~oIl by th~
NSltin thereview process. (AGG-Deri1, PartV.A.7) Other undercover operatioils!nvolving
threats to thenational,security or foreign intelligence are reviewed'and approved pursuarit to FBI
policy as descri,bed herein.
.
.

.~

(VI/FOUO) Application:I.;.,--_--;:

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11.8.2.

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.(U) Legal AuthoritY

A, (U) AGG-Dom, Part V.A.7

B. (U) AGG~UCO
11.8.3.

(U/IFOUO) Deflnitiorioflnvestigativel\1ethod

A. (UlIF0UO) An "undercover activity" is any investigative activity involving the use of an
assumed identity by an undercover employee for a'n official pl.\rpose, investigative activity, or
function. An "undercover employee" 'is an employee of the FBI, another federal, state, or
local law enforcement agency, another entity ofthe United States Intelligence.Cominunity, or,
another foreign intelligence agency working under.the ,direction and control of the FBI whose
relationship with the FBI is concealed'from third parties by the maintenance of a cover or
alias identitY for an official purpose, investigative activity, or function.
B. (UIIFOUO).An "ungercover operation" is an operation that involves a series of related
"undercover activities" over a period oftime by an "undercover employee." A serie~ of
related undercover activitIes consists of more than five separate substantive contacts by an
undercover employee with the individuals under investigation. In investigations relating to
activities in violation offederal criminal law tha~ do not concern threats to the national
security or foreign Intelligence, undercover activity involving sensitive circumstances, which
are listed in the AGG-UCO and the FGUSO, constitutes·an undercover operation regardless
of the humber of contacts involved. A substantive conta~t is a communicatiQn, whether by

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oral, written, wire, or electronic means, that includes information ofinvestigative interest.
Mere incidental' contact (e.g., a conversation that establishes an agreed time and location f9r
another meeting) is nota substantive contact within the meaning of this policy.
. (U/IFOUO) Distinction Between Sensitive Circumstance and Sensitive Investigative
Matter:
(U/1F0UO) The term "sensitive investigative matter" as used in the AGG-Dom should not be
confused with .the term "sensitive Circumstance;' as that tenn is used in undercover operations
or ELSUR matters. The term sensitive circumsfunce relates to a circumstance that arises in an
undercover operation that requires the VCO to obtain FBIBQ approval. A comprehensive list
of sensitive circumstances for criminal activities is contained in the AGG-UCO and for
national security matters in Section 28 of the NFJPM. The Criminal Undercover Operations
Review Committee (CUORC) and the national security Undercover Review Committee
(UCRC) must review and approve undercover operatioQs that involve sens~t!ve
circumstances. The detailed policy for undercover operations is described in this section of
the mOG, the Field Guide for Undercover and Sensitive Operations (FGUSO), and the
FBlf£Q substantive Division program implementation gl1ides.
11.8.4.

(D/IFODO) Standards for Dse and Approval R~quirementsfor Investigative
Method

A. (UIIFOUO) An official considering appn)Val or authorization of a proposed undercover
application must weigh the risks and benefits of the operation, giving careful·consideration to
the foIIowing:
1. (U//FOUO)'The risks of personaI.injury to. individuals, p~operty damage, financial loss to
per~ons or business, damage to reputation, or'other harm to persons;
2. (UI/FOUO) The risk ofcivil liability or other loss to the govefQment;

3. (UIIFOUO) The risk of invasion of privacy or interference with privileged or confidential
relationships and any potential constitutional concerns or other legal concerns;
4. (UlIFOUO) The risk that indIviduals engaged in undercover operations may become

involved in illegal conduct;

5. (UIIFOUO) The suitability of government participation in the type of activity that is
expected to occur during the operation. (AGO-UCa, Part IVA.)
B. (UIIFOUP) The following approval and auth~ri~ati6n requirements apply to undercover
operations relating to activities in violation of federal crimimil law that do not concern threats
to the national security or foreign intelligence:
1. (UIIFOUO) An "undercover activity" in which an undercover employee plans to meet
with a subject requires the approval of the SSA.

2. (UI/FOUO) An "undercover operation" must be approved by the SAC (or an ASAC with
delegated approval authority). The CDC must review all undercover operations before
approval and provide advice to the SAC regarding predication of subjects, entrapment
issues, and whether the proposal meets the requirements of the AGG-UCO or other pOJ
and l'~Bl policy·guidance.

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3. (U/IFOUO) In addition to SAC approval, authorization from the respon~ibl~ FBJHQ
Assistant Director or Executive Assistant Director must be obtained if the undercover'
operation involves a sensitive circumstance or certaIn fiscal circumstances, as those terms
are defined in the AGG-UCO or other FBI guidance.
4. (UIIFOUO) Undercover operations that involve a sensitive circumstance (Group I
undercover operations) require review by the CUORC as pari of the authorization process:
This requirement applies to both new and' renewal proposals.
5. (UIIFOUO) Unqcrcover operations that do not involve a sensitive circumstance' (Group II
undercover operations) require notice to the appropriate FBIHQ substantive Unit and.to
the Undercover and .Sensitive Operations Unit following SAC approval, A renewal that
would extend the operadon beyond'one year requires authorization from the responsible
Assistant Director.

6. (UI/fOUO) All Innocent Images National Initiative (lINI) un,dercover operations deemed
Group I and Group II operations require initiation and renewal approvals from FBIHQ,
Cyber Division.. Group J IINI undercover operations will also be reviewed by the
.
CUORC.
7. (UI/FOUO) Requirements for.interimapprovall:l!1<:1em_erg~ncY·i,lpprovaLforundercover.
operations are contained in the FGUSO.
C. (UlIFOUO) The following approval requirements apply to undercover operations that
c~ncern threats to the national security-or foreign· intelligence:

1. (UIIFOUO) An "undercover operation" must be approved by the SAC (or an ASAC with
delegated approval authority): The CDC must review all undercover operations before
approval and provide advice to the SAC regarding predicati9n of subjects, entrapment
issues, and whether the proposal meets the reql;lirements or-Section 28 ofthe NFl PM, or
itssuccesso~, or ot~er DOl and
policy guidance.
'

Fm

'2. (UI/FOUO) hi addition to SAC approval, authorization from the responsible FBIHQ
Assistant Director or Executive Assistant Director must be obtained if the undercover
operation involves a sensitive circumstance, as defined in Section 28 of the-NFl PM, orits
successor.
.
3. (UIIFOl,JO) Und~rcover operations that involve a sensitive cir~umstance must be
reviewed and authorized by the responsible Assistant Director (Group I operations).
Review by the UCRC must precede such authorization. If the matter involyes religious or
poli~ical organizations, the review must incluqe participation by a represe!1tative of the
DOJ NSD. CAGG-Dom, Section V; Section 28 of the NFIPM,or its successor)
,

4. CUIIFOUO) Undercover operations that do not involve a sensitive circumstance (Group II
undercover operations) must be forwarded to the appropriate substantive Unit at FBIHQ
for review on a UACB basis prior to initiation of the operation. A renewal that would
extend the operation beyond .12 months requires authorization from the responsible
Deputy Assistant Director or Assistant Director.
.
5. CUIIFOUO) Requirements for interim'approval and emergency approval fo.r undercover
operations are ~ontained in Section 28 of the NFIPM, or its successor.

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11.8.5.

(U) Duration of Approval

(UI/POUO)!

11.8.6.

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A. (U//FOVO)
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c. (U//FOuO)I

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(U//FOUO) Compliance and Monitoring, and Reporting !lequirements

I(U/jOUO) All UCOs must provide an.' . .
. '". to-approPfiat1L'_ _...:.·

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11.9.

(U) Investigative Method: Compulsory process as authorized by law, including
grand jury subp'oenas and other subpoenas, Nationai Security Letters

15 U.S.C. §§ 1681u, I68Iv; 18 U.S.C. § 2709; 12 U.S.C. § 3414(a)(5)(A); 50 U.S.C. § 436, and
FISA orders (50 U.S.C. §§ 1861-63).
(U)Summary
(U/IFOUOj
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I When collecting positive foreign inte1Iigence, if the
.
subject is a non-United States person, a request for business records pursuant to 50 U.S.C.
§§ 1861-63 is'lawfui.
.
,

11.9.1.

(D) Federal Grand Jury Subpoen.a

A. (U) Legal Authorities
(U) A Federal Grand Jury is an. independent panel charged with determining whether there is
probable cause to believe one or more persons committed a particular federal offense within
the venue of the district court, If the FOJ believes probable cause exists, it will vote a "true
bill" and the person will be indicted. An FGJ indictment is the most typical way persons are
charged with felonies in federal court. A FOJ can collect evidence through the use of an FOJ
subpoena, which is governed by Rule 6 of the FRCP. FRCP 6(e) controls the release of
information obtained by the prosecutor as part ofthe FOJ proceeding. PRCP 6(e) allows
federaJ prosecutors to share valuable foreign intelligence, counterintelligence, and terrorismre{ated threat information, and it is the DOl',s policy that such information sho!1ld be shared
tothe.fullest extent permissible by law and in a manner consistent with the tule. The
Attorney General has issued revised Guidelines for the Disclos~re and Use of Gra.nd Jury
Information und~r Rule 6(e)(3)(D) (hereinafter "FGJ-Quidelines"). A memorandum issued
by the Deputy Attornev General on May 15. 2008, provides amplifying guidance.

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B. (UIIFOUO) Definition of Metbod
(U/IFOUO) FGJ subpoenas are demands for documents~ records, testimony of witnesses, or
any other evidence deemed relevant by a sitting grand,jury. The FBI can request the issuance
of an FGJ subpoena in coordination with the resoonsible United States h.
's ()ffil'f' in
ail criminal investigative matters I
.

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subpoenas are limited to use prior to

the indictment of the individual to whom the subpoena relates. .
C. {U) Approval Requirements
\

(U) TherearenocFin·supervisorycapproval requireI11ents,:ol,lt allFGJ sub"poenastriusfbe
issued by the United States Attorney's Office that is handlihg th'e as·sessment.6r investigation
to which the subpoenaed materials or witnesses are relevant.
D. (U) Duration of Approval
(U) FGI subpoenas-include a "return .date," which is the date on which the subpqenaed
rtutterials or testimony is due to the grandjury.
E. .(U) Specific P,r.ocedures
(U) FGJ subpoenas are governed by Rule 6(e) of the Federal Rules for Criminal Procedure
and can orily be obtained in coordination with the responsible United States Attorney's
Office or the appropriate. DOJ Divisio~.
(U) Note: 28 C.F.R. § 50.10 requires the apptovarofthe Attorney General before a trial or
FGJ subpoena may be issu,ed toa.third party to obtain the telephone toll records of a member
of the news media, Specific justification is required. Coordination with the Assistant United
States Attorney handling the grand jury presentation or trial is necessary. Before proposing
such.a subpoena, an agent should review 28 C.F.R. § 50.10.
F. (D) Notice and Reporting'Requirements
(D! There are no FBI notice or reporting reqtlirements for FGJ subpoenas.
G. (U) Grand Jury Proceedings-Generally
1. (0) Procedural Issues and Handling ofFGJ Materials

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'(U) The FGJ makes its detennination whether-to return a "true bill of indictment" bllsed,
on evidence presented by the prosecuting attorney in an ex parte proceeding. The grand
jury operates under the direction and guidance of the-United States District Court.
GenenHly, only witnesses for the prosecutiol} testify before the grand jury.

(U) Only the United States Attorney or an assistant, otherDOJ attorneys prosecuting the
matter, the witness under examination, an interpreter (as needed), and the stenographer or
operator of a r~cording device may be present while the grand jury is in ,session. 'No judge
is'present during the presentation of evidence although ~he court will sometime nile on
evidentiary issues'anc\ will provide initial instructions to the FGJ. No person other thari
-the grand jurors may be present while the grand jury is deliberating or voting.
2. (D) Restrictions on Disclosure
(U) As a general rule, no one other than a grand jury witness may disclose-matters
occurring before the grandjury. Government agents, even if called as witnesses, may not
disclose. matters occurring before the grand jury.
'
3. (!J) lj:xceptionsPermitting Disclosure

a. (D) Disclosures by the government without the court's-permission. The
government~ through its attorney, may disclose grand jury matters under the
following conditions:
i.

(U),Under Rule 6(e)(3)(A), the government may disclose a grand jury matter to
the following persons andJn the following sitliationsprovided'the government
does not disclose the grand jury's deliberations or any grand juror's vote and the
go.vemment provides the court that impaneled the grand.jury with the names of
all persons to whom disclosure was made and <;:ertifiesthat the government has
advised the receiving 'party of the obligation of secrecy under this rule.
(U) Persons eligible to,receive material under this subsection are: 1) an attorney
for the governl11ent for'use in performing that attorney's duty; 2) any
government personnel, including state, .local, Indian tribe, or foreign
govern~ent person~el that an attorney fOf the government considers necessary
to assist'in performing-that attorney's duty to enforce federal law; and 3) a
person authorized under 18 U.S.C. § 3322.
(D) Note: FBI OGe attorp.eys an~ CDCs are not "attorney,s for tJ1e
government." Under this Rule, FRCP 1 defines "attorney for the government"
as "the Attorney General, an authorized assistant of the Attorney General, a
Uni.ted States Attorney, [and] an authorized assistant ofthe UriitedStates
Attorney."

it

(D) An attorney fC;>f the goverrunent may disclose any grand jury matter to
another Federal Grand Jury.

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iii.

(U) An attorney for-the government may disclose any grand jury matter
involving foreign intelligence, counterintelligence, or foreign intelligence
information to any federal law enforcement, intelligence, protective,
immigration, national defense, or national security official to assist the official
receiving the information in the performance of that official's duties.,The
government attorney must file; under seal, with the court that impaneled the
grand jury, a notice that such information was disclosed and the agencies or
departments that received the information. As used in Rule 6(e), for~ign
intelligence infomation is information that relates to the ability of the United
States to protect agafnst actual or potential attack or grave hostile acts by a
foreign power or its agents; sabotage or iriternat~onal terrorism by a foreign
power or its agents or clandestine intelligence activities by an intelligence
service or netWork of a foreign power or its agents, or information with respect
to a foreign power or fo'reign territory th~t relates to the national defense or
security of the United States or the United States conduct offoreign affairs.

iv.

(U) An attorney for the goveinment may disclose ~ny grand jury matt~r
. involvi~g, either inthe Unit~d'States'orelse:where;athreat ofattackor.other
grave hostile acts of a foreign power or its agent, a ,threat of dQmestic or
international sabotage, or clandestine intelligence gatl1ering activities by an
intelligence service or network of a foreign power or by its agent to any
appropriate federal, state, local, Indian tribal, or foreign government official for
the purpose ofpreventing or responding to such threat or activities. The
government attorney must file, under seal, with the court that impaneled the
grand jury, a p.otice that such information was disclosed and the'agencies or
departments that received the information.

b. (U) Disclosures by the government requiring the Court's permission. The
gov~rhment, through its attorney, may disclose grand jury matters under the
following coriditions only with permission of the court. Petitions to make these
disclosures are-generally, but not'always, filed with the court that impaneled the
grand jury. Unless the hearing on the government's petition i~ to be ex parte, the
petition must be served on all parties to the proceedings and the parties must be
afforded a reasonabl~ period of time to respond.
i.

(U) An attorney for the,government may petition for disclosure to a foreign
court or prosecutor for llse in an official criminal investigation.

'ii.

(D) An attorney for the government may petition for disClosure to a'state, local,
Indian tribal, or foreign government official, ifthe government attorney can
show that the matter may disclose a violation of state, Indian tribal, or foreign
criminal law, and the purpose ofthe disclosure is to enforce that law.

iii.

(U) An attorney for the government may petition for disclosure to an
appropriat~ military official if the government attorney'can show the matter

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may disclose a violation of military criminal law under the Uniform Code of
. Military Justice, and the purpose of the disclosure is to enforce that law.
c. (U/IFOUO) FBI's Conduit Rule
(UIIFOUO) Only the federarprosecutor is ~uthorized to make an initial disclosure of
Rule 6(e)(3)(D) foreign intelligence informatiqn. As a practical matter, such .
- disclosures are ordinarily accomplished through th~ FBI, which may have existing
information-sharing mechanisms with authorized receiving officials.. Ifthe prosecutor
intends to share information directly with another. official, consultation with the FBI
is required to ensure that disclosures wili be consistent with the existing policy of
intelligence community agencies and·to ensure appropriate handling of sensitive or
classified information.
.I
I
I
I

(lJ/IFOUO) If, incases ~,f emerge.ncy, the prosecutor must disclose information
before consulting with the FBI, the.prosecutor must notify the FBI as soon as
practicable.
d. (U) Other Limitations

(U) Rule 6(e)(3)(D) does not eliQlinate certain other infom1ation protection
requirements, such as restrictions on disclosures oftax returns, on certain finilnCial
information under the Right to Financial Privacy Act, and on classified information,.
to name. only a few examples. Specific statutes may impose additional burdens of
disclosures.
e. (U) Disclosure

(U) An FBI employee may become a "Receiving Official," the person to whom
grandjury.information has been:disclosed, if the FBI r~ceives grandjliry
information developed during' investigations conducted by other agencies. A
Receiving Officialis any feclerat state, local, Indian tribal, or foreign
government official receiving grand jury information, disclosed by an attorney
for the government, under any provision of Rule 6(e)(3)(D). A Receiving
Official may only use die disclosed matet:ial as.necessary in the conduct of
his/her official duties. The Receiving.Official ordinarily must consult with the.
federal prosecutor before disseminating the infol"!"ation publicly, including.in
open court proceedings.

I.

II.

CUJIFOUO) Receiving Officials may only use grand jury information in a

manner consistent with the FGJ-Guidelines and any additional conditions placed
on the use or handling ofgrand jury ·information by the attorney for the .
government.

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iii. (U//FOUO) if dissemination is necessary to the performance of his or her
official duties, a Receiving Official may disseminate Rule 6(e)(3)(D)
information outside of that offiCial's agency to other government officials.
iv. (D) A Receiving Official, other than a foreign government official; must- consult
with the attorney for the government before disseminating Rule 6(e)(3)(D) .
information publiciy (fncfuding through its use in a court proceeding' that is
open to or acce~sible to the public), unless prior disse~ination is necessary to
prevent harm to Hfe or property. In such instances, the Receiving Official shall
notify. the attorney for the government of the dissemination as soon as
practicable.
v. (D) A foreign government Receiving Official must obtain the prior consent
from the disclosing official where possible, or if the disclosing is unavaUable,
from the agency that disseminated the information to that foreign official before
dissemination of the iI)formation to a third government or publicly. Public
dissemination includes using the information in a court proceeding.that is open
to or accessible by the public;
vi. (D) A Receiving Officia] shall handle Rule 6(e)(3)(D) information in a ~anner
consistent with its sensitivity and shall take appropriate measures to restric~
access to this information to individuals who require access for the performance
of official duties.
vii. (U) A Receiving Official shall.immediatelyreport to tlie disclosing attorney for
the government: any unauthorized dissemination of Rule 6(e)(3)(D) information;
or any loss, compromise, or. suspected compromise of R~le 6(e)(3)(D)
information.

f.

(U) Violations

i. (U) A Receiving Official who knowingly violates Rule 6(e)(3)(D) by using the
disclosed information outside the conduct .of his or her official duties, or by
failing to adhere to any iimitations on the dissemination of such information,
may be subject to contempt of court proceedings and. to restriction on future
receipt of Rule 6(e)(3)(D) information.
n. (U) A state; local, Indian tribal, or foreign government official who receives
Rule 6(e)(3)(D) information, and who knowingly violates these guidelines, may
be subject to contempt of court proceedings.

"iii. (U) An attorney forthe government who knowingly violates Rule 6(e)(3)(D)
may be sub~ect t6 contempt of court proceedings..

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g. (U) Limitation on Unauthorized Disclosures.
(U) Rule 6(e)(3)(D)(i) provides that Receiving Officials may use disclosed
information only to conduct their "official duties subject to any limitation on the
unauthorized disclosure of such information." This "limitlition on unauthorized
disClosures" is understood to encompass applicable statutory, regulatory, and
guideline restrictions regarding cl.assification, priv.acy, or other information
protection, as well as any additional restrictions imposed by the federal prosecutor.
(UlIFOUO) Note: The FGJ-Guidelines do not require that the Receivi.ng Official
notify the federal prosecutor of subsequent disclosures, except for consultation for
public disclosures and consent for certain disclosures by foreign officials. The
Receiving Official is bound by whatever restrict~ons govern his or her use and
disclosure of the information as part of his official duties. (Memo dated 5/15108.
Guidelines for the Disclosureand Use of FOJ Information under Rule 6[e)[3)[DD.

h. (UIIFOUO) pJI!!!at,o,ll of Use

i. (UIIFOUO) Because of the restrictions involved in handling information that is
obtained by the use of a grand jU subpoena, whenever possible, alternatives to
the grand jury subpoena, such as _
. . . .
I
Ishould be considered as an alternative method of obtaining
evidence.

e

I

ii. (U) A grand jury subpoena may only be used for purposes of gathering
information that is relevant to the grand jury' ~ investigation. Grand jury secrecy
continues indefinitely, regardless of whether there is an indictment, unless the
material becomes a matter of public record, such as by being introduced at trial.

iii. (U) Rule 6(e)(3)(D) does not require notice to the court of subsequent
dissemination of the information by Receiving Officials.
iv. (U//FOUO) Disclosure ~f grand jury material cannot be made within the FBI for
.unrelated investigations unless a. government attorney has determined that such
disclosure to a particular investigator is needed to assist that attorney in a
specific criminal investigation. The ability of government attorneys to freely
share grand jury material with other government attorneys for related or
unrelated criminal investigations does not extend to investigators without c~e
specific authorization from the government attorney and notice to the court.
Therefore, grand jury material must be restricted when placed into a general
system of records that is freely accessible to FBI· employees and others with
.
access (e.g., ACS).
v. (UI/FOUO) If a government attorney aut~orizes the disclosure.of grand jury
material in the possession of the FBI for use in an unrelated federal criminal

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matter, such approval should be documented in the grand jury subflle ofboth
the initiated case file and the subsequent case file. That documentation will be
in addition to any necessary supplementation to the government attorney's
.
FRCP Rule 6(e) disclosure letter and/or to the internal disclosure list.
vi. (UI/FOUO) The USAO should be consulted immediately for precautionary .
instructions if grandjury material will have application to civil law enforcement
functions (e',g., civii RICO or civil forfeiture). There are very Iimite<texceptions
that allow government attorneys to u~e grand jury mat€?rial or information in
civil matters (e.g., civil penalty proceedings concerning banking law violations).
These exceptions do not automatically apply to ~nvestigative personnel.
Therefore, any similar use of grand jury infonnation by the FBI must be
approved in advance by the government attorney.
vii. (UlIFODO) Disclosure cannot be made without a colirt order for use in noncriminal investigations, such as backgroundinvestigations or name checks.
viii. (U/IFODO) Government personnel who are preparing a response to a Free90m
of Information ActorPrivacy Act request·may properlY'ac~ess grandjury ...
material under,the Rule because they are considered to be,assisting the grand
jury attorney by ensuring against any improper di.sclosure.
i.

(D) Matters Occurring Before the Grand Jury
i. (D)-Core Grand Jury Material: There caq. be no dissemination of matters
occurring-before the grand jury unless such dissemination comes within one of
the exceptions discussed above. Therds no uniform legal definition of what
constitutes matters occurring before the grand jury except for what is generally
referred to as "core" grandjufy material. "C.ore grand jury material" includes
the following: (i) names oftargets and witnesses; '(ii) gr~nd jury testimony; (iii)
grand jury subpoenas; (iv) documents with references to grand jury testimony
(including summaries and analyses); (v) documents that clearly r~ve!ll the
intentions or direction of the grand jury investigati()n; and (vi) other material
tl1at reveals the strategy, direction, testimony, or other proceeding's of a grand
jury.
ii. (U) Documents Created Independent of Grand Jury but Obtained by
Grand Jury Subpoena: Rule 6(e) generally prohibits disclosing "matters
occurring before the grand jury." The rule, however, does not define that phrase.
The issue of whether pre-existing documents fall within that proJ1ibition has
never.been settled conclusively' by the Supreme Court, although many lower
courts have discussed it at length, Courts generally agree that this prohibiti9ndoes not cover all infonnation developed in the course of a grand jury
investigation; rather, the secrecy rule applies only to information that would
reveal the existence, $!rategy or direction of the grand j!lry investigation, the
nature of the evidence prod~ced ~efore the grandjury, the views expressed by

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members of the grandjury, or anythi!lg else that actually occurre,d before the
grand jury. In addition, courts,have frequently held that Rule 6(e) does not
protect documents subpoenaed from tpe govenlment that are sought by third
.parties only for the information contained within the document rather than to
determine the direction or strategy of the grand jury investigation. Due to
developing law on this issue, FBI personnel should consult with the AUSA
responsible to determine now to b~st handle these documents.

iii. (UIIFOUO) Data Extracted from Records Obtained by Grand Jury
Subpoena: Information extracted from business records that was obtained by
grand jury subpoena is often used to fa~ilitate investigations. Some of that type
of data is, by statute or case,law, subject to "the Rule." In other cases,
determination of whether data must be considered subject to "the Rule" depends
on the case law and local practice in the federal district. Information extracted
from grand jury subpoenaed financial records subject to the Right to Financial
Privacy Act of 1978 (12 U.S,.C. § 3420) must be treated as grand jury material
"unless such record has been used in the prosecution of a crirnefor which"the
grand jury issued an indictment or presentment...." With the approval.of the
USAO, inflmnatioIl,from subpoenaed telephone rec9rdS'ruay be disclosed for
use in unrelated federal criminal investigations in those districts where such
material is 'not considered'a "matter occurring before a grand jury." If the
USAO approves generally of this procedure, such'information may be used in
unrelated criminal investigations without authorization from a government
attorney in each instance.

j.

(U) Federal Grand Jury Physical Evidence and Statements of Witnesses'

i. (U) Physical evidence prOVided' to the'governrn~nt in response to a grandjury
subpoena is'subject to the secrecy rule regardless of whether such evidence is
presented to the.grandJury. Physical evidence provided voluntarily or obtained
by means otherthan grand jury process (su<::h as by a search warrant) is not a
grand jury matter regardless .ofwhether such evidence was previously pr is
'
thereafter presented:to the' grand jury.
ii.(U) Statements ofwitnesses obtained as a result of grand jury process. including.
grand jury subpoena, such as a sta~ementgiven in lieu of grand jury testimony,
,are matters occurring before the grand jury irrespective of whether such
witnesses testified before the grand jury or are not required,to testify. Voluntary
statements of witnesses made outside of the grand jury context (not pursuant to
any grand jury process'iricluding a ,grand jury subpoena), including statements
made'outside the'grandjury by a witness who is being prepared for grand jury
testimony, are not grand jury matters irrespective of whether the witness
previously testified or will thereafter testify before the gra.nd jury.
iii. (U) Rule 6(~)(3)(B) requires a federal prosecutor who discloses grand jury
material to government investigators and other persons supporting the grand

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jury investigation to promptly provide the. court that impaneled the grand jury
the names of the persons to whom such disclosure has been made and to certify
that helshe has advised such persons of their obligation of secrecy under the
Rule. In order to document the certification required bythe Rule, government
attorneys often execute and deliver to the court a form, normally referred to as a
"Certific?tion" or "Rule 6(e) letter." A copy of this document should be
maintained with the grand jury material held in the FBI's custody.
iv. (U/IFOUO) Document;ltion ofInternal Disclosures of Grand Jury Material:
Grand jury material should b~ kept in such as fashion as to maintain the
integrity ofthe evidence. Upon taking custody of grand jury material, the FBI
employee should categorize it in a manner to identify .its production source and
how it was obtained, to include the identity of a'custodian of record for
documentary evidence. Practical considerations often require agents assisting
government attorneys to seek assistance in the same investigation from others
within the FBI. In many districts, support personnel and supervisors of case
~gents need,IlQl be (Qutinely included in the Jistprovided'tMlie court. In lieu of
a Rule 6(e) letter from the USAO containing an exhaustive list of names of FBI
personnel, an FBI record of additional internal disclosures must be maintained
by the case agent in order to establish accountability~ Use ofthis "internal
certification" procedure should be authorized by the appropriate USAO. The
internal form.should record the date of disclosure a~ well as the identity and
posit.ion of the recipient. Such internal disclosures may be made only in support
of the sarne'investigation in whi~h.a federal pros~cutor has previously issued a
R.ule 6(e) letter. In addition, the internal record should reflect that all recipients
of grand jury ll1aterials were advised of the secrecy requirements of Rule 6(e):
Whenever practicable, recipients should be listed on tb.is internal certification
pri9r to disclosure. Local Rule 6(e) customs should govern the internal
certification process used.
.
v. {U/fFOUO) Storage of Grand Jury Maferial: The FBI cannot make or allow
unauthorized disclosure of grand jury material. Material arid records obtained
pursuant to the grand jury process are frequently stored in FBI space. FBI
personnel should report ~my unauthorized disclosure to the appropriate
government at,torney.who, in tum, must notify the court. In order to protect
against unauthorized disclosure, grand jury material must be secured in the
fql!owing manner:
1. (UlIFOUO) The cover, envelope, 9rcontainer containing grand jury .
materials must be marked with the w~rning: "GRAND JURY MATERIAL DISSEMINATE ONLY PURSUANT TO RULE 6(e)." Nb Grand Jury
stamp or mark should be affixed to the original material. Agents, analysts
and other authoriz~d parties shouid work from copies of grand jury material
whenever possible to ensure the original material retains its integrity.

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2. (U//FOUO) Access to grand jury material must be limited to authorized
persons (e.g., those assisting an attorney for the government in a specific
criminal investigation). All necessary precautions should be taken to protect
grand jury material, to include maintaining the material in a secure lqcation,
when nof in use. The material must be appropriately segregated, secured,
and safeguarded. Absent chain-of-custody considerations, grand jury
material may be maintained in the IA section of the fiie. GrandjuI'Y. material·
need not be kept in an' evidence or bulky exhibit room and may be entrusted
to a support servi~estechnician (SST) or evideIwe control technician (ECT).
Should,grandjury material be.en!ered into a computer da,tabase?the data
must be marked with the 6(e) warning and maintained within the system in a
restricted manner.

. 3. (UI/FOUO) Registered mail or other trac,eable courier (such as Federal
Express) approved by the Chief Security Officer (CSO) must be used to
mail or transmit to other Field Offices any documents containing grand jury
material. Couriers and other personnel employed in these services will not
be ~ware of the contents of the material transmitted because of the wrapping
procedures'specified below,imd therefore, then do rio~ require it background
investigation for this purpose. The names ofpersons who transport the
material need riotbe placed on a disclosure Jist, but·the receiving office inust
provide the case agent in the originating office with the names of personnel
in the receiving office to whom 4isclosure is made.
4. (UIIFODO) Grand jury material tb.at is to be mailed or transmitted by
traceable courier outside a facility must be enclosed in opaque inner imd
outer covers. The inner cover'must be a sealed wrapper or envelope that
contains the addresses of the sender and the addressee, who must be
authorized to have access to the grandjury material. The inner cqver must
be conspicuously.marked "Grand Jury Information To Be Opened By
Addressee Only." The outer cover must be sealed, addressed, return
addressed, and bear no indication that the envelope contains grand jury
material. When the size, weight, ()r nature of the grand jury material
precludes the use of envelopes or standard packaging, the ma,terial used for
packaging or covering must be of sufficient strength and durability to
protect the infoimatJon from una.uthorized disclosure or accidental exposure.

5. (UIIFOUO) lfthe government attorney determines that the sensitivity of, or
threats to, grand jury material necessitates a more secure transmission
m~thod, the material m~y be transmitted by an express mail service
. approved for the transmission of national security information or be hand
carried by the assigned government attorney or his or'her designated
representative.

6. (U//FOUO) Grand jury material containing classified national security
information· must be handled, processed, and stored,according to 28 C.F.R.

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Part 17. Grand jury material containing other types of sensitive information,
such as federal tax return information, witness security information, and
other types of highly sensitive information that have mor~ stdngent security
requirements than that usually required for grand jury ~aterial must be
stored and protected pursuant to the security regulations governing such
,information and any special security instructions provided by the
organization that originated the information.
7. (UI/FOUO) Original documents that are obtained through the grand jury
process should be returned to the attorney for the go'vernment or, wi~h the
government attorney's permission, to the owner ~f there is no indictmen.t or
the prosecution has concluded.

k. (U)Requests for Subpoenas in Fugitive Investigations
(UI/FOUO) It is generally a misuse ofthe grand jury to use the grand jury as an
investigative aid in the search for a fugitive. Therefore, with the exceptions
discussed below, grand jury subpoenas for testimony or recordnelated,to thefugitive's whereabouts may not be requested hi FBI fugitive investigations.
I.

(U//FOUO) Grand jury process may be used to locate a fugitive if the grand jury
is interest~d in h~aring the fugitive's testimony. Thus, if the grand jury seeks the
testimony of the fugitive in an investigation that the grand jury is indicting, the
grand jury may subpoeria other witnesses and records in a~ effort to locate the
fugitive witness. However, interest in the fugitive's testimony'must not be a:
pretext. The sol,e motive for inquiring into the fugitive~s location must be the
potential value offugitive's testimony to the grand jury's investigation. A
,subpoena' for the fugitive witness must be approved, by the grand jury before
seeking to subpoena witnesses or record,s to locate the fugitive. Furt4er, it is'not '
propeno seek to obtaill grand jury testimony from any witness, in~luding a '
'fugitive, concerning an already-returned indictment. Thus, it would not be proper
to seek to locate a fugitive for the purpose of having the fugitive testify about
matters for wliich ar:t indictment has a,lready been returned, unless there are
additional'unindicted defendants to be discovere~ or additional criminal acts to be
investigated through the testimony ofthe'fugitive. Current.po~icy on "target"
witnesses must be observed. Grand jUlY. subpoeIJas for witne~ses and records
aimed at locating a fugitive witness who is a target of the grand jury investigation
should be sought only where a target subpoena for the fugitive has already been
approved by the responsible Assistant Attorney General.

ii. (U1/FOtJO) Use of the grand jury to learn the present location of a fugitive is also
proper when the present loca~ion is an element of the offense under inyestigation.
On adequate facts, the presentlocation of a fugitive might tend to establish that
another personcis harboring the fugitive, or has committed misprision, or is an
accessory after the fact in the prescnt concealmellt of the fugitive. However, this
justification would likely b~cviewed as a subterfuge if the suspected harborer or

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the person potentially guilty of misprision or as an accessory were given
immunity in the grand jury in orper to compel his/her testimony about the location
of the fugitive. With regard to escaped federal prisoner and bond default matters,
the present location of a fugitive is not relevant evidence in a grand jury
investigation"because these offenses address the circumstances of a prior
depart4re from a known location. The fugitive's present location is not a .relevant
.factor as it is in harboring or as it may be in a misprision investigation. Inasmuch
as uqlawful flight to avoid prosecution cases are, a rule, not prosecuted and
cannot be prosecuted without written authorization from the Attorney General or
an Assistant Attorney General, any effort to use the grand jl.lry in the investigation
of such cases must be preceded by consultation with the DOJ and by written
authorizatiQn to prosecute from the Assistant Attorney General in charge of the
Criminal Division.

as

11.9.2.

(U) Administrative Subpoena

A. (U) Summary

(D) The Attorney General of the United States is vested with the authority to issue
a~hllini§trllUve suJJpoenasunder two provisions oft!leDhited:StatesCode thatliave·relevance
to FBI criminal investigations, 21 U.S.C. § 876 and 18 U:S.C. § 3486. The FBI has no
inherent authority to issue administrative subpoenas but relies on, delegated authority from
the AttorneY' GeneraL The use of adminisg-ative subpoenas is limited t() three categories of
investigations-<lrug program investigations, child sexual exploitation and abuse
investigations, and he~lth-care fraud investigations-and may not be used for any other
purpose. The ~elegated a~thority varies depending on the federal violatio~ being investigated.
The type of information that can be obtained using.an administrative subpoena is also limited
by law or by policy of the Attorney General.
. (UI/FOUO) Note: Within the fBI, the authority to issue administrative subpoenas is limited
to those positions holding.the delegated authority from the Attorney General; that authoritY
may-riot be redelel!ated.l
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B. (U) Legal Authority and'Delegation
I. (U) Investigations involving the sale, transfer, manufacture-or importation of
unlawful drugs
(D) Authority: 21 U.S:C. § 876 arid DO]. Regulation at 28 C.F.R. App to Pt. 0, Subpt. R
§~
.
(U) May be issued to:, Any individual or business· holding records relevant to the-drug
investigation.
.

(U) Records to be obtained: Any records relevant to the investigation.

CD//FOUO) Delegated authority to issue: By DOJ regulation, the Attorney General's
delegation Includes SACs, ASACs; SSRAs and "those FBI Special Agent Squad

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Supervisors who have manageme!1t responsibilities over Organized CrimelDrug Program
investigatio:.:n::S~·"
-'"';""
l
(UI/FOUO]

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=c::;:
. [.. I·
\
. ,
~ght to Pioancia! Privacy Act limitatioos
described in paragr<iph' D ofthis section apply.If ~ddressed toa provider of"electronic
(UIIFOUO) Limitaiioot

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communiCation service"'bY li"rei1!ote computing service/; provisions hi the Electronic .,
Communication Privacy Act (ECPA) govern, as discussed in paragraph 0 of this section.

2, (U) Investigations involving the sexual exploitati9n or abuse of children
(U) Authority: 18 U.S.C. § 3486(a) and Attorney General Order 2718-2004.
(U) May be issued to:, A "provider of an electronic communicatiQn service" or a "remote
cOmput~r service" (both tenns 'defined ·in Section 1L9.2.D.2.b, ·below) and only for the
'production of basic subscriber or clistomer infonnation. The subpoena may require
production as soon as possible but iIi no event less than 24 hours after service of the
subpoena.
.
,
(U) Records to be obtained;1
. ,

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JUl/FOUO) Delegated authority to issue:!
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..

(U(/FOUO) LImitations:. By law, these administratIve subpoenas may only be Issued In
cases that involve a violation ofl8 U.S.C. §§ 1201, 224 1(c), 2242, 2243, 2251, 2251A,
2252, 2252A, 2260, 2421, 2422, or 2423. in which the victim has not attained the age of
18 years. Under the Attorney General's delegation, an administrative subpoena in these
investigations may be issued-only to "proyiders'of electronic communication services" or
to "remote computing services';'to obtain the infonnation listed above. These
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administrative subpoenas may not be issued to any other person or enti
other information, includiri the content of communication

or to· obtain an
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3. .(U) Investigations involving 'Federal Health Care Fraud Offenses
(0) Authority: 18 U.S.C. § 3486(a)
(0) Records to be obtained: Records relevant to an.ip.vestigation relating to a "federal
hea,lth care offense." Federal health care offense is defined in 18 U.S.C. § 24
(U) May be issued to: Any public or private entity or individual with records relevant to
the federal·health care offense. (Note: These are referred to in guidance issued by the
Attorney'General as "investigative demands:")
(UI/FOUO) D~legated authority to iSsue: There is no delegation to the FBI. Delegated
to ,personnel within "DOl's Crimil1al Division and to United States Attorneys, who may
redele~ate the authority to Assistant United States Attorneys.
(0) Limitations: The Right to Financial Privacy Act (RFPA) limitations described in
paragraph D of this section apply. The provisions in ECPA govern, as. discussed in'
paragraphD 6ftl1is secti6ii,ifthe fequest fof fecordsis adoressedt6 a "provjder of
electroniC cpmmunicationservice" or a "remote'computing service.;' The subpoena may
not require,the prod~ction of records at a lace more than 500 miles fr
subpoena is.served.

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CU) RestrictionoiI inqividual health care hlformation: Pursuant to 18 U.S.C. § 3486,
health information about an individual acquired through ,an authorized investigative
demand.maynot be used in, or disclose.q to any person for use in, any administrative,
civjl, or criminal action agajnst that inOividual unless the action or investigation arises
froni and is directly related to receipt of health care, payment for health care, or action
'involving a fraudulent claim related to. health care.

I

(UllFouojl

r

C. (U) Approval Requirements
(U//FOUQ) Use of-an administrative subpoena-requires SSA approval. The SSA may issue
the administrative ~ubpoena if the authority· has been so delegated. Further review and
approval may be required depending on the deiegation. Review by the CDC is appropriate if
legal questions arise in preparing and 'issuing the subpoena.
(UIIFOUO) Note: An individual designated by proper authority to serve in. an "acting" ~tatus
in one of the positions with delegated autnority may sign and issue an administrative
subpoena. The "acting" -status should be documented in an appropriate Field Office
administrative·file and hoted in the case file. For example, if the ASAC with auth9rity to sign
is away onleave or temporary duty and another individual has been designated by the SAC
to serve as' "acting" ASAC, that individual has authority to issue the administrative subpoena.

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Arelief supervisor is not considered to be in an "acting" sta~s for purposes of issuing an
administrative subpoena.
D. (U) Limitations on Use of Administrative Subpoenas

1. (0) Financial Privacy Limitations
a. (U) Obtaining records from a financial institution. "Financial records" are those
records that pertain to a customer's relationship with a financial institution. The
term "financial institution" is broadly defined as a bank, savings bank, card. issuer,
industrial ~oan company, trust company, savings association, building and loan or
homestead association, credit union, or consumer finance institution, located in any
state, territory, 9r the District of Columbia. See 12 U.S.C. § 3401. [Note: Tpe scope
of the RFPA's.definition of-financial institution for this purpose, which limi~s the
restrictions·the RFPA places on federal law enforcement in using an administrative
subpoena, is ~arrower than the definition qf financial institution that is used in
connection with NSLs. For that purpose, the RFPA refers to the broader defivition
found in the Bank Secrecy Act (BSA). Among the entities included in the BSA
definition are money transmitting businesses, cat dealers, travel agencies, and
persons involved in real estate closings. See 12 U.S.C. § 3414(d) and 31 U.S.C.
§5312.(a)(2)and(c)(1).]. When seeking financial records-from a .financial
institution,.the FIn must send a certificate of compliance required by 12 U.S.C.
§ 3403 to the financial ipstitution.The certificate must indicate, among other things,
that notice has been provided by the FBI to the individual customer whose financial
records are to be obtained. The content of the notice is set out in 12 U.S.C. § 3405.
A ,court order may be obtained that allows for delayed notice pursuant to 12- U$.C.
§ 3409. Notice is not required if the administrative subpoena is issued to obtain the
financi~ll records of a corporation or for records not pertaining to a customer. Notice
is also not required.if the administrative subpoena seeks orily basic account
information, defined as name, address, type of account, and accoun~ number. See 12·
U:S.C. § 3413(g).
b. (U) Obtaining records from a Credit Bureau. A credit bureau or consumer
reporting agency may-only provide name, address, former addresses, place of
employment and former place of employment in response to an administrative
subpoen~. 15 U.S.C. § 1681 f. A credit bureau or consumer reporting agency may
not release financial information in a credit report or consumer. report, or the names
ang locations of financial institutions at which the consumer has accounts pursuant
to an administrative suBpoena. A court order, a grand jury subpoena, or, in an
appropriate case, a national security letter may be used to obtain this information.
IS U.S.C. § 168 i b. Notice of disclosure will be provided by the credit bureau or
consumer reporting agency to the' consumer if the consumer requests this
'
information.
2. (U) Electronic Communication Privacy Act
a. (U) Use of an Administrative Subpoena. The ability t,9 gather subscriber
information and the content of electronic communications using an administrative
subpoena is governed by ECPA. In cases involving the sexual exploitatioI:\'or abuse
of children, only basic subscriber or customeriJiformation may be obtained with an
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.administrative subpoena under the terms ofthe Attorney General's delegation, as
described above. No content information may be ob~ined. In drug and health care
fraud investigations, an administrative subpoena may be used to obtain basic
subscriber or customer information and certain stored communications, under
limited circumstances, from entities that provide electroniC communication services
to the p~blic. -

two

b, (U) Definition.s. ECPA applies to
types of entities that provide electronic
communications to the public~ The term "provider _of el.ectronic communication
services" is defined in 18 U.S.C. § 251 O(fS) as "any service that provides the user
thereof the ability to send or receive wire or electronic communications." The term
"remote computing services" is defined in-I8 U.S.C. § 2711(12) as the "provision
to the'public of computer storage 9r1processing services by means of an electronic
communication system."
.

I

c. (U) Subscriber information.1

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d.. (U) Records or other information pertainin to a subscriber.

e. (U) Content. Content is the actual substance of files stored in an account,_ including
the subject line of an e-mail.
(1)

(U) Unopened e-mail held in storage for] 80 days or less may not be obtained
using an administrative subpoena. A search·warrant is required.

(2) (U) Unopened e-mail that has been held in electronic storage for more than 180
days may be obtained with an administrative subpoena-. (In the Nin.th Circuit,
the opened e-mail-and un-opened e-mail must have been in storage for 180 days
before it can be obtained with an administrative subpoena. See Theofel v.
Farey-Jones, 359 FJd 1066.) The government must provide notice to the
subscriber or ~ustoiner prior to obtaining such content. A limited exception to
the notice requirement is provided in 18 U.S.C. §2705.
. (3) (U) E-mail that has been opened and the content of other electronically stored
files held in storage by an entity that provides storage services to the public (Le.,
a remote computing service, as defined in 18 U.S.C. § 2711), may be obtained
using an administrative subpoena with notice to the customer or subscriber,
unless notice.is delayed in accordance wit!l18 U.S.C. § 2705.

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(4)

(U) E-mail that has been opened and the content of other electronically stored
'files held in storage by an entity that does not provide electroriic communica,tion
services to the public, such as that on the ~nternal network of a business, may be
obtained uSing an administrative subpoena. Notice to the indiv.idual is not
required because this demand is not restricted by ECPA.

, 3. (UI/FOUO) Members of the Media

a

(U/IFOUO) An administrative subpoena directed to provider of-electronic
communication services or any other entity seeking to obtain local and long distance
connection records, or records of session times of calls, made by a member of the news
media may only be issued with the specific approval of the Attorney General. Requests
for this approval should be reviewed by the CDC and coordinated with,an Assistant
United States Attorney (AUSA). The request must provide justification for issuance of
the subpoena consistent with the Dep~rtment of Justice policies set forth in 28 C.F.R.
§ 50.10. Guidance' on'this policy may be obtained from the Investigative Law Unit and/()r
the Privacy and Civil Liberties Unit, OGC.
E. (U/IFOUO) CompliancelMonitoring
.

1. .(U) Limits oil-use.1

_.,

- --- '-

..

.

.

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2. ruiIFOUQ) Ov~rnrod~ctionJ

I
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3. (U/IFOUO) FactorS for compiiance. The following factors should be considered to
ensure compliance with applicable laws and regulations that govern the FBI's use of
administrative subpoenas:
a. (U//FOUO) The administrative subpoena must relate to a type of investigation for
which the sUQpoena is authorized;
b. (UlIFOUO) The administnitive subpoena must be d~rccted to a recipient to whom
an administrative subpoena is authorized;
. c. (U//FOUO) The administrative subpoena may request only records that are
authorized under the pertinent law;
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d. (U/IFOUO) The administrative subpoena must be approved by an authorized
official;
e. (U/IFOUO) The administrative subpoena rrlUst be uploaded into the Aut,omated
Gase Support (Ae'S) system to the Subpoena ("SBP") subtile of the substantive
case tile for record purposes;

f. (U/IFOUO) The return of service information must be completed on the back of
the original administrative subpoena;
g. (U//FOUO) The original administrative subpoena and completed return of service
must be maintained in a "SBP" st!bfile of the substantive investigation; and
h. (U//FOUO) The records provided in response to the,administrative subpoena must
be reviewed to ensure that the FBI is authorized to collect the rec9rds provided. If
an over-production has occurred, ~teps must be taken to correct the error.

U.9.3.

(U),National SecuritY Letter

A. (V) Legal Authority

(0) 15 U.S.C. §§ 1681u, 1681v; 18 U.S.C. § 2709;
~(U)12:U;S.C. §3414(a)(5)

(A); ~OV:S.C § 436;

(V) AGG-Dom, Part V
(V) A National Security Letter (NSL) maybe used only to request:

1. (U) Financial Records: The Right to Financial Privacy Act'(RFPA), 12 U.S ,C.

§ 3414(a)(5);
2. (V) Identity of Financial Institutions: Fair Credit Reporting Act (FCRA), ISD.S.C.
§ 1681u(a);
.
,

3. (0) Consumer Identifying Information: FCRA, 15 U.S.C. § 1681u(b);
4. (U) Identity of FinancialJnstitutions an9, Consumer Identifying Information: FCRA,
15 V.S.C. §§ 1681u(a) & (b);
5. (U) Full Credit Reports in International Terrorism Investigations: FCRA, 15 U.S.C.
§ 1681v; and
6. (U) Telephone Subscriber Information, Toll Billing Records, Electronic
Communicatjon Subscriber Information, and Electronic Communication
Transa~tional Records: ElectronicCommunicationsPrivacv Act (ECPA), 18 U.S.C.
§2709.
B. (U) Definition

ofMe~hod

(U) A National Security Letter is an administrative demand for documents' or records that can
be made by the FBI during a predicated investigation relevant to a threat to the national
security.'Sample NSLs are available.
C. (U//FOUO) Approval Requirements
(UIIFOUO) A request for an NSL has two parts. One is the NSL i~self, and one is the EC
approving the issuance ofthe NSL. The authority to sign NSLs has been delegated to the

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Deputy Director, Executive Assistant Director and Assi~tant EAP for the National Security
Branch; Assistant Directors and all DADs for CT/CD/Cyber; General Counsel; Deputy
General Counsel for the National Security Law Branch;Assistant Directors in Charge in NY,
DC, and LA; and all SACs.
(UlIFOUO) In addition to being signed by a the statutorily-required approver, every NSL
must be reviewed and approved by a: CDC, ADC or attorney ac~ing in that capacity, or an
NSLB attorney
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2. (D) Copy of NSL
(UlIFOUO) A copy of the signed NSL must be retained in the investigative case file and
uploaded under the. appropriate NSL document type in ACS. Docum~nted proof of
. service ofNSI,. letters must be maintained in the case file.
3. (UI/FODO) Second Generation Information
(UI/FODOj

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4. (UI/FODO) EmergencY Circumstances
(UlIFOUO) ECPA protects subscriber or transactional' information regarding
communications from disclosure by providers of telephone or other electronic
communication services. Genenilly, an NSL, grand jury subpoena, or other forms,of legal
process must be used to compel the communication service provider.to disclose
subscriber qr transaCtional information. In emergency circumstances, however, if the
provider in good faith believes that a delay in disclosure could pose a danger of death or
serious bodily injury, the provider may voluntarily disclose information tothe FBI. As a
matter of FBI policy, when there is a danger of death or serious bodily injury that does
not permit the proper processing of an NSL, if approved by ~m ASAC, a letter to the
provider citing 18 U.S:C. § 2702 maybe used to request emergency disclosure. If time
dqes not permit the.issuance of an emergency letter citing 18 U.S.C. '§2702, an.oral
request to the provider may be made, but the oral request must be followed-up with a
letter as described herein.
(UlIFODO)1

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F. (UI/FOUO) Notice and Reporting Requirements
'(U/IFOUO) The National Security Law Branch at FBlHQ is required to rep'ort information
,ab£>ut NSL usage to Congress. Theda~ neces$!1ry for Col1 gressional reporting is
__
:automaticafIy recorded ifthe NSL is created in the NSL Sllbsyste,m (FISAMS). If the NSL
created outside the system, the EC must include all information necessary for NSLB
accurately to report NSL statistics. The EC must break down the number of targeted phone
numbers/e-mail accounts/financial account~ that are addressed to, each and every NSL
recipient. Therefore, if there are three targets, ten accounts, and six recipients of an NSL, the
EC mu~t state how many. accounts are the subject of the NSL as to Recipient 1, Recipient 2,
etc. It is not sufficient to only indicate that there are ten accounts ,and six recipie~ts.

is

(U//FODO) In addition, the F~I must report the UnjtedStates person status of the subject of
all NSL requests (as opposed to the target of the investigation to which the'NSL is relevant),
other than those seeking subscriber information. While the subject is ofteg the target of-the
investigation, thai is, not always the case. The EC must reflect the United States person status,
of the subject of the request - the person whose information the FBI is seeking. If the NSL is
seeking information about more than one person, the' EC must reflect the United States
person status of each of those persons. (See the form ECs, which make clear that the United
States person status applies to the target ,of the request for information.)
(U/IFOUO) Finally, to ensure acc4rate reporting, the EC must accurateJy state'the type of
information that is being soug!:tt. NSLs for toll billing records or transactional records will
include subscriber information. The EC need only state that the request'is for toll pilling ,
records or, transactional records, lind the reporting paragraph should state ,that toll billing or
transactional records are being sought for x number of accounts, and, if multiple recipients,
froineach of recipients #1, #2, etc.
.
G. (U/IFOUO) Receipt of NSL Information

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H. (U//FOUO) Dissemination of NSL material
(U//FOUO) Subject to certain 'statutory limitations, information obtained through the u~e of
an NSL may be disseminated according to generaLdisseminatjolJ standards in the AGG-Dom.
ECPA (telephone and electronic communications records) and theRFPA (financial records)
permit dissemination if consistent with the AGG-Dom and ifthe information is clearly
relevant to the respolJsibilities of the recipient agency. FCRA, 15 U.S.C. §. 1681 U , permits
dissemination to other federal agencies as may be necessary for the approval or conduct of a
foreign counterintelligence investigation.FCRA imposes no special rules for dissemination
of fu II credit reports.
.

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(U//FOUO~

I

the matenal received in return.!,

!the NSLs themselves are not cia""jfiprl

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I.

(U) Payment for NSL-Derived Information
(UlIFOUO) Because there is no legal obligation.for the FBI to compensate recipients of
NSLs issued pursuant to ECPA, 18 U.S.C. § 2709 (toll billing records information,
subscriber, electronic communication transactional records) or FCRA, 15 U.S.C:. § 1681 v,
(full credit reports in international terrorism cases), there should not be payment in
connection with those NSLs. See EC, 319X-HQ-A 1487720-0GC. serial 222, for'a form
letter to be sent in response to demands for payment for these types ofNSLs.
, (U) Compensation is iegaUy required for NSLs served to obtain financial information
pursuant to RFPA, 12 U.S.C. § 3414(a)(5), and credi~ information pursuant to FGRA, 15
U.S.C. § 1681u. Under 12 C.F.R.§ 1.19.3, Appendix A, a fe~ schedule has been adopted
under which photocopying is reimbursable at $.25 per page and searching is reimbursable at
$11 per hour (or clerical staff. Regulations governing'a payment schedule for FCRA, 15
U.S.C. § 1681 u, NSLs has not been promulgated.

11.9.4.

(D) J;Jusiness Record Under FISA

A (U) )j~ga. Authority
(D) 50 U.S.C. §§ 1861-63
B. (U) Definition of Method

(1) A FISA order fo~ business records is an order for a third party to produce documents,
records and other tangible information rel~vant to' a predicated national security investigation.

FISABusiness Record Orders I11ay not be tised to obtain information during a positive
foreign intelligence case if the material sought relates to a United States person. There is no
"FISA-deriyed" impediment to the use of !iocuments obtained pursuant to such orders.
C. (U//FOUm Annroval Rcaui

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D. (U) Duratiop of Approval
(D) Duration is established by the court order.

'E. (U) ~otice and Reporting Requirements
(U) There are, no special notice or reporting requirements.

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F. (D) Compliance Requirements
(D) The case agent-who receives production of documents pursuant to a FISA business records
'order mustdo the following:
1. (D/lFODO) Handle the production as required by the Standard Minimization
Procedures Ado ted for Business Record Orders

2. (U) Whether or not required by paragraph 1, prior to uploading the documents or data
receive<j. into PBI databases, review the docllmentS produced to determine whether they
are respons~ve to the order..
a. (D/IFOUO) If the producing party has mistakenly provided'material thafis
'entirely non-responsive{e.g., the producing party inverted numbers'olJ an account
. ,and produced entirely irrelevant and non-responsive material), the case agent
must sequester the material and discuss with the CDC or NSLB the appropriate
way to return the unr:esponsive.material to the' producing party and'obtain the
responsive material. .
~. CU/1FOUG) If the producing partY'has produ;ced responslv.e materIal and
material that is beyond the parameters of the order issued by the FISC (e.g., the
FISC ordered production of one month's records and the pat1)'produced records
for 6 weeks),.the case agent must determine whether the material produced that is
outside the parameters of the FISC prder is subj~ct to statutory protection (e.g.,
recordsShat are subject to the Right to Financial Privacy Act, the Buckley
Amendments, the Elec;tronic Communications Privacy Act; Fair Credit Reporting
Act).

i. (U/IFOUO) Ifthe overproduced material is subject to statutory
protection, then the overproduced material mustbe treated like
overproductic;m is treated in the contl!xt.of a natiomil security letter.
ii. CUI/FOUO) If the overproduced'materhil is not subject to statutory
protection, then i~ may be uploaded. Indetennining whether to upload the
.overproduced materi~l, the case agent should consider the extent to which
the overproduction includes non-public.informatiori regarding United
States persons who are not the subject ofa national. security inVestigation;
the sensitivity of the information contained within the overproduction;, and
the qurdensomene~s of separating the overprod!lced material from the
responsive material.

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11.10. (U) InvestigativeM~thod: Accessing stored wire and electronic communications and
transactional records i~ conformity with chapter 121 oftitJe 18, United States Code
11.10.1.

(U) Summary

(UIIFOUO) FBI employees may acquire the contents Qf stored wire or electronic
communications and associated transactional records-including basic sllbscriber iilforrmition~s,provided in 18 U.S.C. §§ 2701-2712. Requests for voluntary disclosure under the,emergency
authority of 18 U.S.C. § 2702 require prior approval from the Field Office ASAC or FBIHQ
Section Chief when appropriate.
(UIIFOUO) Application: This investigative method may be used during national security
investigations and criminal investigations as authorized by statute. This method may not be used
for assistance to other agencies, unless re.levant to an already open predicated investigatiop. This
method cannot be used to collect positive foreign intelligence. Additionally, this method cannot
be used during an assesslllent
A. (U) Stored Data: The Electronic Communications Privacy Act (ECPA}-18U.S.C.
'§§ 270 1-2712-governs the disclosure of two broad categories of information: (i) the
contents ofwite orelectroniccommunicationsheldin'·'electronic storage" by providers Of
"electronic communication service" or contents held by those who 'provide "remote
computirig service" to the public; and (ii) records or other information pertaining to a
subscriber to, or customer of such services. The category of "records qf other information"
can be subdivided further into subscriber records (listed in 18 U.S.C. § 2703[cJpj) and
stored traffic data or other records.

(U) Records covered by ECPA'include all records that are related to the subscriber, including
buddy lists, "friend" lists (MySpace), and virtual property qwne~ (Second Life). These other
sorts of records are not subscriber records and caimot be obtained by a,subpoena under 18
U.S.C. § 2703(c)(2) or anNSL under 18 U.~.C. §2709.

B. (U) Legal Process: The legal process for obtaining disclosure will vary depending on the
type of information sought and whether the information is being vpluntarily provided under
18 U.S.C. § 2702 (e.g., with consent or when emergency circumstance~ require disclosure) or
the provider is being compelled to provide the information un:der 18 U.S.C. § 2703, as
'outlined below.
C. (U) Contents held in "electronic ston~.ge" by a provider of "electronic communication
service" for 180 days or less can only, be obtained with a search warrant based on probable
cause. Accordingly, such records may only be obtained during a fuq investigation.'
(U) Contents held by tp,ose who provide "remote computing service" to the public and
contents held in "electronic storage'" (or more than 180 days by an "electronic
communication service" provider can be obtained with: a warrant; 'a subpoena; or an order
issuec! by a c04rt tinder 18 U.S.C. § 2703(d) when prior notice has been 'provided to the
customer or subscriber (unless the court has authorized delayed notice).
(U) Title 18 United States Code Section 2705 establishes the standard to delay notice for .an
initial period of up to 90 days. Records or other infonnation pertaining to a subscriber to or

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customer of such services, including basic subscriber information can be obtained with a
search warrant or an ]8 U.S.C. § 2703(d) order without notice.
D. (0) BasiC subscriber infonnation, as described in 18 U.S.C. § 2703(c)(2), can be compelled
by a grand jury or administrative subpoena without notice.
E: (U) Preservation ofStored Data; Jhe government is authorized under 18 U.S.C. § 2703(f)
to direct a provider to preserve records or"other information (stored records or ,
communications) in its possession for 90 days (which maybe extended for an additional 90days) pending issuance of applicable legal proc~ss for disclosure. To make a preservation
request, the FBI must believe that the records will subsequently be sought by appropriate
legal process.
.

F. (0) Cost reimbursement: Title 18 United States Code Section 2706 requires the
government to reimburse for costs incurred in providing the contents of communications,
records, or other information obtained under 18 U.S.C. §§ 2702, 2703, or 2704, except tQat
reimbursement is not required for records or other information maintained oy a
communications common carrier that relate to telephone toll records and telephone listings
obtained under 18 U.S.C. §,2703. In essence, the government does not have to reimburse for
the cost of producing records that the provider maintains in the ordinary course of its
,business.,
ll.tO.2,. (U) Legal Authority
(U) 18 U.S.t..§§ 2701-2712

(U) AGG-Dom, Part Y.9

(U) ECPA-,18 U.S.C. §§ 2701-2712- creates statutory privacy rights for the contents of
commqnicati,ons in "electronic,sto~age'" and records ,or other information pertaining to a
subscriber to or customer of an "electronic communication service" and a "remote computing
service." TJ1e statutory protections protect the·privacy of an individual's electronic data
contained in a networked account-that may otherwise fall outside the scope of the protections
afforded by the Fourth Amendment-when such account or its service is owned'or managed by a
third-party, provider.

(0) E~PA generally: (i) prohibits, access to the contents of wire or electronic communications
while in "electronic storage" unless authorized (i8 U.S.C. § 2701); (ii) prohibits a provider of
servi(;e to the public from disclosingth~ contents of wire or, electronic communications while
,held in "electronic storage,"'and divulging to the government any information pertaining to a
subscriber to or customer of such set;\'ice unless authorized (18 U.S.C.. § 2702); and (iii)
authorizes the ,go:vernment to compel disclosure from a provider of stored contents of a wire or
electronic' communication and records or otherinformatiol), pertaining to a subscriber to or
cqstomer (18 U.S.C. § 2703). ECPA provides for reimbursement of costs incurred in providing.
the information acquired.
.
lL10.3.

(U) Definition ofInvestigative Metbo~

A..(U) Definitions:
(U) Electronic Storage: is "any temporlifY, intermediate storage of a'wire ()r electronic
communication incidental to the electronic transmission thereof," or "any storage of such
communication by an electronic communication service for purposes of backup protection of

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~u"h \fommunication." ]8 U.S.C.

§ 2510(17). In short. "electronic storagcll refers only to

temporary storage, made in the course of transmission, by a provider of an electronic
communication service.
(U) Remote Computing Service (RCS): is the "provision to the public of computer storage
'
or processing services by me'!-ns of an electronic communications system." 18 U.S.C.
§ 27] I(2). In essence, a remote computing service is an off-site computer that stqres or
processes data-for a customer.
(U) Electronic Communications System: is "any wire. radio, electromagnetic; photooptical
or photoelectronic facilities for the transmission of wire or electronic-communications, and
any computer faqiIities or related electronic equipment for the electronic storage·of1!l,1c~
communications." 18 U.S.C. § 2510(14).

(D) Electronic Communication Service (ECS): is "any service that provides to users
thereof the ability to send or receive wire or electronic communications." 18 U.S.C.
§ 2510(15). For example, telephone companies and electronic mail companies generally act
as providers of electronic comf!lunication services.

(D) E.CPA authorities can be divided into two categories: (i) compelleddisclosure-legl).l
compeLproviders to disclose~thecontents~of.stC5redwireor.electroniccommunications (including .e-mail and voice mail-opened and unopened) and other
information such as ac~ountrecords and' basic. subscriber information; and· (ii) voluntary
disclosure of such informati()n from service providers; Each of these authorities is discussed
,below.
pr()c~ss to

B..(D) Compelled Disclosure:

1". (D) Title i 8 United States Code Section 2703 lists. five types of legal process that the
.government can use to compel a provider to disclose certain kinds of information. The
five mechanisms, in descending order of required threshold showing are as follows:
•

(U) Search warrarlt;

•

(U) 18 U.S.C. § 2703(d) court order with prior notice to the subscriber or customer;

•

(U) 18 U.S.C. § 2703(~) court order without prior notice to the subscriber or
customer;

• CD) Subpoena with prior notice to t.he subscriber or customer; and
•

({) Subpoena without prior notice to the subscriber or customer

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2. (UIIFOUO) Notice-Orders Not to Disclose the Existence of a Warrant, Subpoena,
or Court Order: FBI employees may obtain a court order directing network service
providers not to disclose the existence of compelled process ifthe government has no
legal duty to notify the customer or subscriber'ofthe process. If ail. 18 U.S.C. § 2703(d)
order or 18 U.S.C. § 2703(a) warrant is being used, a request for a non-disclosure order
can be inclu~ed in the application an~ proposed order or warrant. If a subpoena is being
used to obtain the informati9n, a separate application to a court for a non-disclosure.
order must be made.

3. (U) Legal Standard: A court may order an electronic communications service provider
or remote computing service noUo disclose the existence of-a warrant, subpoena, or
court order for such period as the court deems appropriate. The court must enter such
an order if it determines that there is reason to believe that notification of the existence
of the warrant, subpoena, or court order will result in:
•

(U) Endangering the life or physical safety of an individual;

•

(U) Flight from prosecutiol1;

•

(U) bestructio ll of or tampering with evidence;

•

(0) Intimidation of potential witnesses; or

•

(U) 'Otherwise seriously jeopardizing an investigation or unduly delaying a trial. 18
V.S.C. § 2705(b).
, .

4. (V) Search Warrant: Investigators can obtain die full conteQts of a network account
with a search warrant. ECP A does not require the government to notify the customer or
subscriber when it obtains information from a provider using a search warrant.
Warrants issued under 18 V.S.C. § 2703 must complY with either FRCP Rule 41 or al').
equivalentstafe warrant. However, all warrants issued pursuant to 18 U.S.C. § 2703 do
not require personal service; those warrants issued by a federal-court have nationwide
jurisdiction (see below); and the warrants may only be served on an electronic
communication seryice or a remote computing service. FRCP Rule 41 also poses the
additional requirement on these warrants that a copy of the warrant be left with the
provider, and a return and inventory be made.
(U) Vnd~r 18 U.S.C. § 2703(a), with a search warrant issuec;l based on probable cause
pursuant to FRCP Rule 41 or an equivalent state warrant, the government may obtain:
a. (U) "The contents .of a wire or electroni.c communication, that is in electronic
storage in an electronic cpmmunications system for one hundred and eighty days
or less," and
b. (V),Everything that can be obtained using a 18 U.S.C. § 2703(d) court order with
notice.
.
(U) In other words. every record and all of the stored contents ofan account-including
opened imd unopened e-mail/voice mail~ can be compelled by a search warrant ba,sed
on probable cause pursuant to FRCP Rule 41. Moreover, because the warrant is issued

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by a neutral magistrate based on probal;>le cause, obtaining a search warrant effectively
ins~lates the process from'challenge under the Fourth Amendment,
(U) Nationwide.Scope: Search warrants under 18 U.S.C. § 270~(a) may be issued by a
federal "court withjurisdictio~ over the offense under' investigation," and may·be
executed outside the district of the issuing court for material responsive.to the warrant.
State courts may also issue warrants und~r 18 U.S:C. § 2703(a), but the statute does not
give these warrants effect outside the issuing court's territorial jurfsdiction. As with a
typical FRCP Rule 41 warrant, investigators must draft an affidavit and a proposed
warrant that complies with FRCP Rule 41.
(U) Service of Process: Title 18 United States Code Section 2703(a) search warrants
are obtained just like any other FRCP Rule 41 search warrant but are typically served
on the provider and compel the provider to find and produce the information described
in the warrant. ECPA expressly states that'the presence of an officer is not required for
service or ex~cutioh of a search warrant issued pursuant to lSU.S.C. §2703(a).

5. (U) Court Order with Prior Notice to the Subscriber or Customer: Investigators
c~nlol:ltain everythingin·a I!~tw<?rk account except for unopened e~maH or voice-mail
stored with a provider for 180 days or·less using a i8U:S.C.§2703(d) court order with'
prior notice to t~e subscI:iber unless they have obtained authority for delayed notice
pursuant to 18 U:S.C. §. 2705. ECPA distinguishes between the contents of
communications that are in "Electronic storage" (e.g., unopened e-mail) for less than
180 days, and those that·have been in "Electronic storage" for longer or that are no
longer .in "Electronic storage" (e.g., opened e-mail).
(U) ,FBI .employees who .obtain a court order under 18 U.S.C. § 2703(d),.andeither 'give
prior notic y to the·subscriber or comply with the delayed notice provisions of 18 U.S.C.
§ 2705(a), may obtain:
a. (U) "The contents of a wire or electronic communication that has been in
electronic storage in an electronic communications system for more than one
,hundred arid eighty days." 18 U.S.C. § 2703(a).
b. (U) "The .contents Qf any wire or electronic communication" held by a provider of
remote computing.service "on behalf of ... asub~criberor customer of such
remote computing service," 18.U.S.t. §§ 2703(b)(l)(B)(ii), 2703 (b)(2); and
c. (U) everything that can be obtained using a 18·U.S.C. § 2703(d) court order
without notice.
.
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(U) Legal Standard: To order delayed notice, the court must find that "there is reason
to believe that notification ofthe·exislence ofthe court order may. ; . endanger[] the
life or physical safety 0 f an individual; [lead to] flight from prosecution; [lead to]
destruction of or tampering with evidence; [l~ad to] intimidation of potential witnesses;
or ... otherwise seriously jeopardiz[e]an investigation or unduly deiay[] a;ti'ial." 18
U.S.C.§§ 2705(a)(I)(A) an,d 2705(a)(2). The applicant must satisfy this standard anew
each time an extension of the delayed notice is soiJght.

(U) Nationwide Scope: Federal court orders under 18 U.S.C. § 2703(d) have effect
outside the district of the issuing court. Title 18 United States Code Section 2703(d)
orders may compel providers to disclose information even if the information is stored
outside.the district of the issuing court. See 18 U.S.C: § 2703(d) ("any court thaUs
court of competent jurisdiction" may issue a 18 V.S.C. § 2703[d] order);· 18 U.$.C.
§ 2711(3) (court of competent jurisdiction'includes any federal court having jurisdiction
over the offense being investigated without geographic limitation).

a

('() Tttie 18trnited States Code Section 2703(0) orders may also be issued by state"
courts. See 18 U.S.C. §§ 2711(3); 3 I27(2)(B). Title 18 United States Code Section
2703(d) orders issued by state courts, however, do not have effect outside the
jurisc:\iction of the issuing state. See 18 U.S.C. §§ 2711 (3);
6. (D) Court Order with9ut Prior Notice to the Subscriber or Customer: FBi
employees need"an 18 U.S.C. § 2703(d) court order to obtain most account logs and
most transactional records.

(0) A. court order under 18 D.S.C.§ 2703(d) may ~ompel disciosure of:
a. (U) All "record(s) or other information pertaining to a subscriber to or customer
of such service (not inCluding the contents ofcommunications [held by providers
of electronic communication"s service and remote computing serVice]), II and
b. "(D) Basic subscriberinfon:nation·thlit can be obtained using a subpoena witho·ut
notice. l8.u.S.C. § 2703(c)(1):
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I~~~~J
(UIIFOU01I

c. _(U) Cell site.and Sector information: Cell site and sector information is
considered '!a record or other infoqnation pertaining to a subscriber') and
therefore, production of historical and prospective cell site and sector· information
may be compelled by a court order under 18 U.S.C. § 2703(d). Requests made'
pursuantto 18 U.S.C. § 2703(d)'for disclosUre of prospective cell site and sector

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infonnation-which is delivered to law enforcement under Communications
Assistance for Law Enforcement Ac[ (CALEA) at the beginning and cnd of
calls- must be combined with an application for pen register/trap and trace
device. Some judicial districts will require a showing of probable cause before
authorizing the disclosure of prospective cell'site and sector information.

d.

I

:

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-

(UI/FOUO]

1
"

02

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I

(Uj

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(Uf
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17)
TTNe'T .~~~Tl?T1i'n_1UlD "];'];'TnT:' T

TTC'T.' nll.TT '7

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(U) Legal Standard: A court order under 18 U.S.C. § 2703(d) is known as an
"articulable facts" court order or simply a "d" order. "This section imposes an
intermediate standard to protect on-line transactional records. It is a standard higher
than a subpoena, but not a probl!.ble cause warrant. The intent of raising the standard for
access to transactioQal data,is to guard against "fishing expeditions" by law
enforcement." (See H.R. Rep. No. 102-827, at 31 (1994), reprinted in 1994
D.S.<;.C.A.N.3489.)

(U) The FBI must state sufficient specific andarticulable facts for the'courtto find that
there are reasonable grounds to believe that the contents pf a wire or electronic
communication, or the records or other information sou h are relevant and material to
an ongoing criniimH investigation
'.

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7. (D) Subpoena with Prior Notice to the Subscriber or Customer: Investigators can
subpoena,opened e-mail from a provider inhey either give prior notice to the
subscriber or-comply with the delayed notice provisions .of 18 D.S.C. § 2705(a}-which
requires l!. written certification oy the SACor ASACtliarthere is reason to'beJieve that
notification 'ofthe existence of the subpoena may have an adverse result.
(D) FBI employees who obtain a subpoena and either give prior notice to the subscriber
or comply with the delayed notice provisions of 18 U.S.C. § 2705(a),may obtain:
.
a. (D) "The contents of any wire or electronic communication" held by a provider of
remote computing service'''o,n behalf of ... a supscriber or 'customer of such
remote computing service." 18D.S.C. §2703(b)(1)(B)(i), § 2703(b)(2);
b. (D) "The contents of a wire or electronic communication that has been in
electronic storage in an electronic communications'system for more than one
hundred and eighty days." 18 U.S.C. § 2703(a); and
c. (D) Basic ~ubscriber information listed, in 18 U.S.C. § 2703(c)(2).

L--,,----r====~::::;::::::=====================11

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(D) Notice:1

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(D) Legal standards for delaying notice. The supervisory officfal must certify in
writing that "there.is reason to believe that notification of the existence of the court
order may ... endanger[] the life or physical safety of an individual; [lead to] flight
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from prosecution; [lead to] destruction of or tampering with evidence; [lead to]
intimidation of potential witnesses; or ... otherwise seriously jeopardiz[e] an
investigation or undu1Y delay[] a trial." 18 U.S.C. §§ 2705(a)(l)(A), 2705(a)(2).
Importantly, this standard must be satisfied anew every time an extension of the
~eJayed notice is sought.
8. (D) Subpoena without Prior Notice to the Subscriber or Customer: Investigators
can subpoena basic subscriber information listed in 18 U.S~C. §'2703(c)(2).
o

(D) The government may use an administrativ~ subpoena authorized by a· federal or
state statute or a. federal or state grand jury or trial subpoena to compel a provider to
disCl9Se basic subscribednformationlisted in 18 U.S.C. § 2703(c)(2): -"name; address;
local and long distance telephone connectiotl records, or records of session times ap.d
durations; length of service (including start date}and types of ~erviCe used; telephone'
or instrument number <;Ir other subscriber number or identity,. including any te~porarily
assigned network addre~s; and means and source of payment for such service
(including any credit card'or bank account number)(.]"
(U
<

--~

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See,PATRIQT Act § 210, 1.15 Stat. 272, 28:3 (2001).
(U) Legal-Standard: The legal threshold for issuing <!- subpoena is low. In United
States v. Morton Salt Co., 338 U.S. 632, 642-43'(1950), the Court articulated the
deferetltial standard for judicial review of administrative enforcelJ).ent actions is a fourfactor evaluation of "good faith" issuance requiring that: (i) the investigation is
conducted pursuant to a legitim'ate purpose; (ii) t!le information requested under the
subpoena is relevant to that purpose; (iii) the agency does not already pave the
information it is seeking wit~.the subpoena; and (iv) the agency has followed the
necessary administrative steps 'in issuing the subpoena.
(U//FOUO) In the event that a federal grand jury subpoena is used, however,
appropriate protections against. disclosure must be followed in comoliance with FRCP
.
Rule 6(e).1

I Where the
telephone billing'records being sought are those of a member otthe news me<;lia,
approval of the Attorney General is required. (See OlOG Section 11.9. 1.E)
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C. (U) Voluntary Disclosure

I~~~~~~~
1. (V) Service NOT Available to tbe Public: Providers .of services not available "to the
public" are not prohibited from disclosure under ECPA, and. so the provi~er may freely
disclose both contents and other records relating to stored cOITmiunications. Andersen
Consulting v. UOP, 991 F. Supp. 1041 (N.D. Ill. 1998) (giving hired consulting firm
employees access to VOP's e~mail system is hot equivalent to providing e-mail to the
public). Only providers of services to the public are prohibited from disclosing stored
contents and records, unless statutorily authorized.

2. (U) SerVices That ARE Available to the rublic: lfthe services offered by the
provider are available to the public, then ECPA precludes both the disclosure of
contents to any third party, including the government, and the disclosure of other
records to any governmental entity unless a statutory exception applies. The statl;ltory
exceptions permit disclosure by a provider to the pu.blic,rfll?~sen.9~ Wh~l1 theneed~ of
public safety and service providers outweigh privacy fnterests.
..
(U) If the provider is autborized to disclose the information to the government under 18

U.S.C. § 2702 and is willing to do so voluntarily, law enforcement does not need to
obtain a legal order to compel the disclosure.
(U) If a provider voluntarily discloses under the statute, there is·no follow~up legal
process required or available. If the provider,on the other hand, eitqer may not or will
not disclose the information; FBI employees must rely on compelled disclosure
.
provis~ons and obtain the appropriate legal orders.
i.

(U) Voluntary disclosure of Sto~ed Contents
(V) ECPA authorizes the voluntary disclosure of stored contents when:
(a) (V) The disclosure is with the consent (express or implied) of the originator,
~ddressee, intended recipient, or the subscriber in the case of opened"e-mail,
18 V.S:C. § 2702(b)(3);
.
(b) (U) The disclosure "may be necessarily incident to the rendition oft!:le service
or to the protection ofthe rightS or prop~rty of the provider of that service," J 8
U.S.C. § 2702(b)(S);
(c) (U) The provider "in good faith, believes that an emergency involving danger
of death or serious phY$ical injury to any person requires disclosure without
delay of information relating to the emergency," I?, U,S.G~ § 2702(b)(8);
(d) (U) To the National Center for Missing and Exploited Children, in connection
with a report submitted thereto under Section 227 ofthe Victims of Child
Abuse Act of 1990. (42 U.S.C. § 13032 and 18 U.S.C. § 2702[b][6]); or
(e) (D) The contents are inadvertently obtained by the service provider and
appear to pertain to the commission of a crime. Such disclosures can only' be
made to a law enforcement agency. 18 U.S.C: § 2702(b)(7)

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(U) Voluntary disclosure ofNon-co~tent CustOlJlcr Records

ii.

(U) ECPA provides for the volun~ry disclosure of non-content customer
records by a provider to a governmental entity when:
, (a) (U) The disclosure is with the consent (express or implied) of the customer or
subscriber or 1~ U.S.C; § 2702(c)(2) ;
(b) (U) The disclosure "may be necessarily hicident to the rendition ofthe service
or to the protection of the rights or property of the provider ofthat service," 18
U.S.C. § 2702(c)(3);
(c) (U) The provider "in good faith, believes that an emergepcy involving danger
of death or serious physical injury to any person requires disclosure without
delay of information relating to the emergency," 18 U.S.C. § 2702(c)(4); or
(U1/FOUO) Note: an emergency disclosure under this statutory, exception is
justified when the circumstances demand immediate action on the part of the
government to prevent death or'serious bodily injury, and does not depend on
the immediacy of-the risk of danger itself. For example, an e-mail that
di~cusses a planned terrorist attack but natthe timing for the attack wo~ld
constitute an emergency that threatens life or limb, 'even though'the timing of
the attack is unknown. It is the need for immediate action to prevent the
serious harm threatened,by,tnese circumstances rather than the immediacy of
the threat itself that is the reason Congress authorl?:ed voluntary disclosur.es
under this exception. H.Rpt. No. 107-497 p 1'3-14 (June 11, 2002)
accompanying H.R. 3482, The Cyber Security.Erihancement Act of2002,
which passed as part of the comprehensive Homel~nd Security Act, See P.L.
i'07-296§ 225.
Cd) (U) To the National Center for Missing and Exploited Children, in connection
with a report submitted thereto under Section 227 of the Victims ofChiid
Abuse Act of 1990. (42 U.S.C. § 13032 and 18 U.S.C. § 2702[c][S])

iii.

(u)

a

Pres.rv.tio of Evidence nud.riS U.s.C. § 2703(1):

.\

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(U) A governmental entity is authorized to direct providers to.preserv'c stored
records-and communications pursuantto 18 U.S.C. S 2703(f).1
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L.-_,......-~-:-~_---:-:-_--:_::-I\ Once a preserVation request is made, ECPA
requires that the provider must retain the records for 90 days, renewable for
another 90-day p'eriod upon a government request. See 18 U.S.C. § 2703 (f)(2).

(U) Specifically, 18 U.S.C. § 2703(f)(l) states:
(a) (U) A provider of wire or~electronic communication service or a remote
computing service, upon the request of a governmental entity. must take all

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necessary steps to preserve records arid other evidence in its possession
pending the issuance of a court order or other pr()gess.
(breD) There is no legally prescribed format for 18 U.S.C. § 2703(f) requests.

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(U) FBI'employees who send IS U.S.C. § 2703(f) letters to netw()rk service
providers should be aware of two limitations. First, the authority to direct
providers to preserve records and other evidence is not prospective. That is, 18
U.S.C. § 2703(f) letters can ord~r a provider to preserve records that have
already been created but cannot order providers to preserve records riot yet
made. If FBI employees want providers to record information aQout future
electronic communiCations, they must comply with the electroniC surveillance
statutes. Asecond limitation onS U.S.C. § 2703(f) is that some providers
may be unable to comply effectively with 18 U.S.C. § 2703(f) requests
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(U) Video Tape Rental or Sales Records

iv.

(U) Title 1.S United States Code Seqtion'2710 makes.the unauthorized
disclosure of records by any person engaged in the rental, sale, or delivery of
prerecorded video cassette tapes or similar audiovisual materials unlawful and
provides an exclusionary rule to prohibit personally identifiable.inforrnatiqri
otherwiseobtairied from being admissible as evidence in any court'proceeding.
Personally identifiable.information is defined as "information that identifi.es a
pers9nas having requested or obtained specific video material or services ...."
(a) (U) The disclosure to law enf()rcement of "personally identifiable
informatio~" is permitted only when the law enforcement agency:

(1) (U) Has ,the written consent of the customer;
(2) (U) Obtains a warrant issued under the FRCP or equivalent state warrant;
or
(3) (U) A grand jury subpoena;
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(U) This type of infoffilation was specifically not included in the definition of
"personally identifiable information" to allow law enforcement t6 obtain
information about indiyiduals during routine investigations such as
'
. neighborhood investigations.

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(U/IFOUO) The disclosure of "personally identifiable information" in a
national security case may be compelled through use of the above legal
processes or pursuant to a business records order issued under 50 U.S.C.
§ 1861.
11.10.4.

(U) Approval Requirements for Investigative Method

A. (U) Voluntary Emergency Disclosure
(UI/FOUO) ECPA protects subscriber and transactional information regarding'
communications from disclosure by providers of telephone or other ,electronic
communication services. Generally, an NSL, grand jury subpoena, or other form of legal
. . service
, oraVI'd'er to d'Ise Iose sueh
process must beused to compe1the eommumcatlon
informationJ
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.

(V1/FOUOj

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'.

(UIIPOUO)!

\

l~'=========================~

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(UlIFOUOH

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. 11.10.5. (U) Duration of Approval
(0) As authorized by statute (e,g., for as long as the emergency necessitating usage exists and
only in those circumstan~es when it is impracticable to obtain legal process) and applicable court
order or warrant.

11.10.6. (UIIFOUO) Specific.Proc"edures
A. (UIIFOVO) Filing requirements: l----~----------------. b2
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I
,

I

B (U//FOUO) Contact with Providers:l
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~

.

C. (U) Cost Reimbursement:
(U) Policy and procedures regarding cost reimQursement are described in the following:
(U) Consistent payment procedures

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.\

.\

(\J) 5/25/2005 Cost Reimbursement Guidance (18 U.S;C. § 2706 - ECPA)

11.10.7. (U) Notice and Repor~ing Requ,irements
A. (U) Voluntary disclosures: Ti~le 18 United States Code Section 2702(d),requires the
Attorney General to report annually to Congress information pertaining to the receipt of
voluntary disclosures of the contents of stored wire or electronic communications in an
emergency under 18 U.S.C. §'2702(b)(8), specifically: .
1. (U), The nUIl1ber of ~ccounts from which DOJ received voluntary disclosures under
subsection (b)(8); and

2. (U) Summary of the basis for disclosure in those instances where .the investigation
pertaining to those disclosures was closed without the filing of criminal

charg~s.

B. (U)-RoleslResponsibilities: OGC/lLB is assigned the administrative responsibility to, by
Decemb(lr 31' of each year:

L (U) Tabulate the number of voluntary disclos,ures of stored contents received under the
authority of 18 U.S.C. § 2702(b)(8) for the calenqar year;

2. (U) Prepare the report summarizing the basis for disclosure in those installces where the
investigation. Ptlrtaining to tho~e discl()su~es was closed without the filing of criminal
charges; and
3. (U) Submit the report to OGC for review and submission to DOJ according to the
statutory requirement for annual report by the Attorney General.
11.10.8.

(U) Other Applicable'Policies

(

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11.11. (U) Investigative Method: Pen Registers and Trap and Trace devices in conformity
with chapter 206 of Title 18, United States Code, and the Foreign Intelligence
Surveillance Act
0

11.11.1. (U) ~ummary
(U) Pen register and'trap and trace (PRITf) devices enable the prospective collection' o(noncontent traffic information associated with wire and electronic communications, such as: the
phone numbers dialed from °or to a particular telephone, including .electronic communications;
messages sent from or to a particular telephone; or the Internet provider (IP) address of
communications on the Internet and other computer networks.
(U/IFOUO) Application: The PRITT may be used in preliminary and fulrnational security and
crimin~l investigations. This method ml1-Y not-be used for: (i) targeting a United States person
when providing assistance to other agencies, unless there is already an open FBI preliminary or
full investigation relate~ to the request for as~istance or the pr~dicate exists t9 open a preliminary
or full investigation; (ii) targeting a United States person when collecting against a foreign
'
intelligence requirement; or (iii) during an assessment.
11.11.2. (U) Legal Authority
(U) 18 U.S.C. §§ 312 I -et seq. and 50 U.S.C. §§ 1842 et'seq, regulate the use of PRrIT devices.
PRITT orders can collect IP addresses, port numbers and the. "To" and "From" information from
e-mail;.they cannot intercept the co~tent of a communication, such·as words·in the "subject line"or the body of an e-mail.
11.11.3. (U) Definition of Investigative Method
(U) A pen register device records or decodes dialing, routing addressing or signaling information
transmitted by an instrument or facility from which a wire or electronic communication is
transmitted, provided that such information must not include the contents of any communication.
18 U.S.C. § 3127(3).
(0) A trap and trace device captures the incoming electronic or other impulses that identify the
originating number or other dialing, routing, address~ng or signaling information reasonably
likely to identify the source of a wire or electronic communication, provided that such
information does !Jot include the contents of any communication. 18 U.S.C. § 3127(4).

11.11.4. (U),gtandards for Use and Approval Requirements for Investigative MethQd
A. (U) Pen Registerlfrap and Trace unde~ FISA: Applications for authority to i.!se a pRfIT
device can be made to the FIS<:: in national security investigations.

1. (U) Legal Standard: Applications to the FISC are to be under oath anq must include:
a. (U) The identity of the federal officer making the application; and
b. (U) A certification by the applicant that the information likely·to be obtained is .
foreign intelligence information not concerning a United States person or, if
concerning a UniteqStates persQn, is information that is relevant to an ongoIng
investigation to protect the United States against intem~tional terrorism or
clandestine intelligence activities; and thilt such investigation, if of a United States
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person, is not conducted solely upon tlJe basis of activities protected by the First
Amendment to the Constitution.

2.

Procedures: Re uests for initiation or renewal ofFISA PRITT must be made
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EISAMSw
route the request t6 appropriate parties for their, review and approval of the request
Routing a paper copy for
'
sIgnatures is not required.

'---~--------:----~-::-","",,:,---:---:-""';--:----~~'"

,I ,
3~

,I

(U) Emergency Authority-FISA: 50 U.S.C. § 1843
(UIIFOUO) Under the provisions ofFISA, the Attorney General may grant Emergency
Authority (EA) f<;>r PRITT. Requests for Emergency Authority must be referred to the
appropriate'FBlHQ Division.

(UlI.FOUO)\
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a. ,(D) The Attorney General may authorize the installation and use of a PRITT upora determination that an, emergency exists and that the factual basis exists for a
court order. The FISC must be informed at the time of the autl),orization and an
appli~ation for a court order must be made to the court no more than seven (7)
days after the authorization. Emergency-authorized PRm use must terminate
when the information sought is obtained, when the FISC denies the application, or
seven (7) days after the Attorney General authorization is given.
b. (U) If the FISC denies the application after an emergency PRITT device has been
installed, no information collected as,a result may be used in any manner, except
with the approval of the Attorney General upon a showing that the information
indicates a threat of death or serious bodily harm to any person.
(U) Notwithstanding the foregoing, the President, acting through the Attorney
General, may authorize the use of a PRlIT, without a court order, for a period not to
exceed 15 calendar days, following a qeclaration of war by Congr~ss.
....-----:-.....,;.-...,
If an emer enc situation arises aft
ular business hours
1-.==::::=~

1....---,

":'-_-l..

---,~at

any time 9uring an

emergency.
B. (U) Crim'inal Pen Registerrrrap and Trace tinder 18 U.S.C.§§ 3121 et seq.: Appli<?ations
forthe installation' and use of a PRffT device may be made to a "court of competent

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jurisdiction"--'-i.e., "any district court of the United States (including a magistrate judg~ of
such a court) or any United States court of appeals having jurisdiction over the offense being
investigated, or any court of general criminaljurisdiction of a State authorized by the law of
that State to enter orders authorizing tl).e use of a pen register or trap and trace device." 18
U.S.C. § 3127(2).

1. (U) Legal Standard: Applications for authorization to install and use a PRIIT device
must include:
a. (U) The identity of the attomey for the govemment or the state law. enforcement
or investigative officer making the application and the identity ofthe law
enforcement agency, conducting the investigation; and
b. (U) A certification by the applicant that the information likely to be obtained is
relevant to an ongoing criminal investigation being conducted by that agency.

.2. (UI/FOUO) 'Procedures: An SSA must approve a request for initiation or renewal of
PRITT use prior to submission of the request to anattomey. for the govemment.Before
approving such a request, the ~SA should consider of the following:
a..(U//FOUO).Theuseofresources based on theilwestigativ~p~rposes~t'f9rth~

\

b. .(U//FOUO) Whether there is sufficient factual basis for the certification to be
made in the app~icat!on (i.e., is the information likely to be obtained relevant to an
ongoing criminal investigation);
c. CU//FOUO) Whether the customer or subscriber has consented to the use of a
PRJTT, see 18 U.S.C. § 3121 (b)(3); or
d. (U//FOUO) Whether the use of a pRfIT i1' the least intrusive method feasible
under the circumstances.

(U//FOtJO).A copy of the approving EC must be maintained in the investigative case file
and/or sub file and in the ELSBR Admin~strative Sub:f;ile to the corresponding case file,

,

t

(U//F0UO) A PRrIT order is executable anywhere within the United States and, upon
service, the order applies to any person or entity providing wire'or electronic
communication service in the United States.whose assistance may facilitate the execution
of the order. Whenever such an order is s~rved on any person. or ~ntity not specifically
named in the order,'upon request of such person or entity, the attomey for the
government or law enforcement or investigative officer that is serving the order must
p!'ovidc written or electronic certification that the order applies to the person or entity
being served.
.

3. (U) Emergency Authority-Criminal:
(U) The Attomey General, the Deputy Attorney General, the.Associate Attorney Gen~rai,
any Assistant Attorney General, any acting Assistant Attomey General, or any Depilty
Assistant Attomey General may specially designate any investigative or law enforcement
officer to determine whether an emergency situation that requIres the installation and use
ofa·PRfIT device before art order authori~ing such installation and use can, with due
diligence, be obtained.
"
(U) An emergency situation as defined in this section involves:

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a. (U) Immediate danger of death or serious bodily injury: to any person;
'b. (U) Conspiratori~1 activities charact~ri~tic of organized crime;

c. (U) An immediate threat to a national security interest; or
d. (0) An ongoing attack on a protected computer (as defined in 18 U:S.C. § r030)
that constitutes a crime punishable by a tenn of imprisonment greater than ?ne
year.
(U) If the DOl authorizes the emergency installatioJ? of a PRITT, the government has 48
hours after the installll;tion t6 apply for a court order according to 18 U.S.C. § 3123. It is a
violation oflaw to fail to apply for a court order within this 4& hour period. Use of the
PRITT shall immediatelY tenninate when the infonnation sought is obtained, when the
.application for a court order is denied, or if no court order has been obtained 48 hours
after the installation of the PRffTqevice.
(U//FOUO) As with'requesting authorization for an emergency Title IIIJ
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, lance that approval has, been
obtain'ed, the DOJ attorney will adyis~ the AUSAthat the emergency use has been
approved and that the law enforcement agency may proceed with the installation and us~
orthe PRffT. The DOJ attorney will send a verification memorandum, signed by the
authorizing official, to the AUSA. The AljSA will include an authorization memorandum
with the application for the cquit order appr9ving the emergency use.

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(VIIFOUO) Iran emergency situation arises after regular business hours.1
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11.11.5. (U) Duration of Approval
(U) National Security: The use of-a PRITT device maY-be au~horized by the FISC for a period.
of time not to exceed 90 days in cases targeting a United States person. Extensions maybe
granted (or periods not to ~xceeq. 90 days uponre-:appiication to the' court. In casestargetihg a
non-Uni~ed States'person; an order or extension may be for a period of time not to exceed one.
year.

a

(W) Crim.inal: The installation arid use of a.pRITT device may be authorize by court order
under 18 U.S.C. § 3123 fot a period not to exceed sixty days, which may be extended for
additional sixtY-day periods. '
11.11.6.. (UIIFOUO) Specific Procedures

A. (UIIFOUO) Prior to installing and using a PRITT qevice (whether issued in a criminal or
national security matter), the case agent should:

.I. (UlIFOUO!

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11.11.7.

(U) Use and Dissemination oflnformation Derived from Pen Registerrrrap and
Trace Authorized 'Pursuant to FISA
(U) 50 U.S.C. § 1845

A. (U) No information acquired from a PRtrT device installed and used pursuant to FISA may
be used or disclosed by fede~al officers or employees except for lawful purposes.
B. (V) No information acquired pursuant to a FISA authorized PR/TI may be disclosed for law
enforcement pUrposes unless such disclosure is accompanied by a statement that such
information, or any infonriation derived therefrom, may only be used in a criminal
proceeding with the advance authorization of the Attorney General.
C. (D) Whenever the United~ States intends to enter into evidence or otherw.ise use or disclose in
any trial, hearing, or other proceeding in or before any court, department" officer, agency,
regulatory body, or other authority of the United States against an aggrieved person,any
information obtained or derived from the use of ~ PRtrT device acquired pursuant to FISA,
the United States must, before the trial" hearing, or other proceeding or at a reasonable-time'
before an effort to so disclose or so use that information or submit it into evidence, notify the
aggrieved persQn, and the court or other authority iii which the information.is to be disclosed
or used, that the United States intends to so disclose or so use such information.
(U) Note: 50 U~S.C. § 180 I(k) defines aggrieved person as: '''a person who is the target <;If an
electronic surveillance or any other person whOse communJcations or activities were subject
to electronic surveillance."

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11.11.8. (P) Notice and Reporting Requirements .
A. (U) Annual Report for·Criminal.Pen Registerrrrap and Trace: The Attorney GeneraLis
requIred to make an annual report to Congress on the number ofcri~inal PRJrr orders
applied for by DOl law enforcemen~ agencies. 18 U.S.C. § 3126. The report is to include the

following infoi:mation:
1. (U) The period of interc~ptionsauthorized by the order, and the number.arid duration of
any extensions;
2. (U) The offense specified in the order or application, or extension;
3. (U) The number of investigations involved;
,

4. (U) The number.and nature of the facilities affected; and
5. (U) The identity, including the district, Of the applying agency making the application'
and the person authorizing the order.
(UllfOlJ9) PQJ, Gritnil1.al'I)ivision, Office ofE,nfor<;emc;:n.t Qp~r.lltions require)) tlJatth~ F131 .
provide .quarterly reports on pen.register usage. To satisfy DOJ data requirements and
standardize and sim ii field re cirtin Court-ordered en re ister usage must be reported to
FBIHQ
within five workdays of the
expiration date of an original order or extensions, or denial of an application for ail order. ,For all
criminal PRJrr orders or extensions issued on or after January 1, 2009J
]
I.
."
lT1)ese reporting requirements, do not apply to PRITT
authorized pursuant to consent or under the provisions ofFISA.
B. (U) Semi-Annual Report fQrNational Security.Pen Register$ and Trap and Trace: The

Attorney General must infonn the House Pennanent Select Committee Ql1Intelligence,
Senate Select Committee on Intelligence, Committe~ of the :JudiCiary of the House
Representatives, and Committee.ofthe Judiciaryofthe Senate concerning all uses ofPRJTT
devices pursuant to 50 U.S.C. § "1846. This-report is coordinated through DOJ NSD. A semi. annual report must be submitted that contains the following information:
1. (U) The total number: of applications made for orders approving the use of PRfIT devices;

2. (U) The total number of such'orders either granteq, modified, or denied; and
3. (U) The total number of PRITT devjces whose installatio~ and use was authorized by the

Attorney General on an emergency basis and the total number ofsubsequent orders
'
approving or denying the i!"!stallation and use of such PMT devices.
11.11.9, llJ) Special Circumstances
A.· (U/IFOUO) Avoiding Collection and Investigative Use of "Content" in tbe Operation of
r~n Regist~rs and Trap

and Trace Devices

1. (t,JIIFQUO) Overview: Telecommunication' netwoJ;'ks provide users the abilityto engage
in extended dialing and/or signaling;, (also known as "post cut-through dialed digits" or
PCTDt», which in some circumstances are simply call-routing information and, in others,
are call content. For example, .PCTDD.occur when a party places a calling card, creqit
card, or collect call by first dialing a long-distance carrier access number and then, after
the initIal call is "cut through," dials the telephol)e number ofthe'destination party. In

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other instances, PCTDD may represent call content, such as when a party calls an
automated banking service and enters an account number, calls a pharmacy's automated
prescription refill s<;:rvice and enters prescription information, or enters a call~back
number when.prompted by a voice mail service. S.ee United States-Telecom Al:l:n v
Federal Communications Commission 227 F.3d 450 462 (Dr. r.ir.200m!
I
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(U//FOUO) The definition of both a pen register device and a trap and trace device
provides that the inforination collected by these devices "shall not include the contents of
any communication." 18 U.S.C. § 3127. In ad~ition, 18 U.S.C. § 3121(c) makes explicit .
the requirement to "use technology reasonably available" that restricts the collection of
information "so as not to include the cohtents of any wire or electt:onic communications."
"Content" includes any information concerning the substance, purpose, or meaning of a
communication. 18 U.S.C. § 2510(8). When tlw pen register definition is read. in
wrij!l.nctioll Wi~ the limitation provision, however, it suggests thll.t although a PRrIT
device may not be used fQr the eXpress plirpose"of collectingconterit, the incidental
collection of content may occur'despite the use of "reasonably available" technology to
m~nimize, to the extent feasible, any possible over collection of cOllteht while stili
.
allowing the device to collect all ofthe dialing and ~ignaling informati9n authorized.

DOJ Policy: In addition to this statutory obligation, DOJ has issued a directive to all DOJ
agencies requiring that no affirmative investigative use may be made of PCTDD
'incidentally collected that constitutes c~mtent, except in cases of emergency-,-to prevent
an immediate danger Of death, serious physical injury, or harm to the national security.

.(V//Fouml

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2. (UlIFOUO) Collection:

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3. (UI/FOUO) Use ofPCTDD:

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iv; (U//FOUO)
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4. (UI/FOUO) What constitutes PCTD» content: In applying the above, the term
"content" is interpreted to'mean,"any information concerning the substance, purpose, or
meaning of a communication" as defined in 1'8 U.S.C. § 2510. Questions concerning
whether specific PCTDD are content as opposed to dialing, routing or signaling
information should be addressed. to the CDC or OGC for ~oordination with DO] as
necessary.
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B. (UI/FOUO) Use of cell site simulators/digftal analyzers/wireless intercept tracking
technology. A PRITT order or consent is requir~d for the FBI t6 use equipment· to capture
a~y "signaling information":--including the Mobile Station Identification Number (MSIN)
and ElectroriicSerial Number (ESN) or odier registration-typedata-emitted from a
wireless phone into the public airspace-even though this can be accomplished without the
assistance of the service. provider. Because 18 "u.S.C. § 3127 defines PRITT devices in
terms of recording, decoding or capturing dialing? routing, addressing, or signaling

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information, the government's use of its own device to capture such signaling data. whether passively monitoring or actively interrogating-constitutes the use of a "pen
register" ,deviCe ,and requires an order or statutory exception to avoid violating the statute.
The following discusses how wireless intercept tracking technology (WITI) is used:
L (U/IFOUO) To Locate a Known Phone:

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a. (1)//FOUO) Auth,ority: A standard PR/1To'rder is adequate to authorize the use of
this technology to determine the location of a known targeted phone"provided that
the language authorizes PBI employees to install or cause to be installed and use a
pen register device, without geographical 'limitation, at any time of day or night
within (X) days from the d~t~ the order is signed, to record or decode dialing,
routing, addressing, or signaling information transmitted by the "Subject
Telephone." The application and order should generally also request authority to
compel disclosure, of cell site Jocation data on an ongoing basis 'under 18'U.S.C,
§ 2703(d)-or probable cause, if such is required by the particular district court-as
such information may ,assist in determining the general location of the targeted
phone
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UUnder Kyllo v. United States: 533 U:S. 27 (2001), the u~e 9f equipm~nt not III
general, public use to acquire data that is tiot otherwise detectable that emanates
frorn a nriYate nremise implicates the Fourth AmendmenLj'

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2. (UlIFOUO) To Identify an Unknown Target Phone Number:
(UlIFOUO) Authoritv:r

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C. (U) PRITT Order Language: The language in the order should state that "the pen register
will be implemented unobtrusively and with minImum interference with the servic.es
accorded to customers of such service."

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11.12.

(U) Investigative Method; Electronic Surveillance under Title III llnd under
FISA .

11.12.1. (U) Summary
(UI/FOUO) Electronic Surveillance (ELSUR) is a valuable investigative method. It is, a~so, a
very intrusive means of acquiring information reievantto the effective'executi~nof the PBl"s,
law enforce(nent, n!1tional security and intelligence missions. To ensure that due consideration is
given to the"'competing interests between law enforcement and the effect on privacy and civil
liberties, this section contains various administrative and management controls beyond those
imposed by statute and'DOI guidelines. Unless otherwise noted, it is the responsibility of the·
case agent and hislher supervisor to ensure compliance with these instructions. ELSUR is only
authorized'as an investigative method in the conduct of full investigations. ELSDR requires: (i)
administrat.ive or judicii'll authorization prior to its us~; (ii) contact with the Field Office ELSUR
Technician to coordin~te all necess~ry recordkeeping; and (iii) consultation with,the Technical
Advisor (TA) or a designated ITA to determine feasibility, applicability, and use of the '
appropriate equipment.
(U/IPODO) Application:\
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11.12.2. (U) Legal Authority
(D) ELSUR is authorized by chapter 119, 18 U.~.C. §§-2510-2522 (Title III of the Omnibus and
Safe Streets Act of 1968); 50 U.S.C. §§ 1801-1811 (FISA); and E.O. 12333 § 2.5.

11.12.3. (D) De~nition of Investig~tiyeMethod
(D) ELSDR is.the non-consensual electronic collection of information (usually com!l1unicatiohs)
under Circumstances in which the parties have a reasonable expectation of privacy and court
orders or warrants·aie required.

1-1.12.4. (U) Standards for Use and Approval Requirements ,for Investigative Method
A. '(U//FOUO) FISA

1~ (D/IPOUO) PBiHQ and Field Office requests for'FISC ELSUR orders must use the
FISAReguest Form. 'field Office requests for FISA orders are submitted and tracked
through FlSAMS. The FISA request forms, in a question and answer format, have been
designed to ensure thatall information needed for the preparation of a FISC application
is provided to F~IHQ and to the DOJ.

2. (U) A Certification by the Director of the FBI or 9ne of nine other individuals
aqthorized by Congress or the President to provide such certifications that the
information being sought i.s foreign intelligence 'information; that a significant purpose
of the electronic-surveillance is to obtain foreign intelligence information; that such

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information cannot reasonably be obtained by nonnal investigative techniques; that the
information sought is '!foreign intelligence information" as defined by. FISA; and
includes a statement explaining the certifier's basis for the certification.
(D) Note: Title 50 of the United States Code Section 1804 specifies the Assistant to the
President for National Security Affairs; E.O. [2139 as amended by £.0.13383
specifies the Director of the J:BJ, Deputy J;)irector of the FBI~ the Director of N~tionaJ Intelligence, the Principal Deputy Director ofNatiqnal Intelligence, the Director of the _
Central Intelligence Agency; the Secretary of State; the Deputy Secretary-ofStaie, the
Secretary of Defense, and th.e Deputy Secretary ofOefense as appropriate officials to
make certifications required by FISA.
3. (U) EI)1ergency FISA Authority (50-U.S.C. § 1805[t])
(U) The Attorney General, on request from the Director·ofthe FBI or hislher designee,
may authorize an emergency FISA for electronic surveillance when it is reasonably
determined that an emergency situation exists that precludes advance FISC'review and
approval and that a factual predication for the issuance of a FISA Order exists. A FISC
judge must be informed by DOJ at the time of the emergency authorization anq an
application must be-submitted to that judge as soon as is practicable but not more than
. seven(7}days after the emergency authority"has-been approved by the Attorney"
General. If a court order is denied after an emergency.surVeillance /:las been initiated,
n9 inforniation gathered as a result of the surveillance may be used as evidence or
disclosed in any trial or other proceeding, and no infonnation concerning any United
.....States person acquired from such surveillance may be used or disclosed in any manner,
except with the approval of the Attorney General if the information indicates a t~reatof
death or serious bodily harm to any person.
(U/IFOUO) For an emer enc FISA for electro .
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B. (U) Title III
(UIIFOUO) An SAC (or designee) has the authority to approve requests for "nqn-sensitive"
Title III orders. An Acting SAC may approve such requests in the absence of the SAC. The
authority to approve Title III applications may not be delegated lower than the ASAC level.
The SAC, with the recommendation of the CDC, must determine whether the request
involves sensitive circumstances.
(UIIFOUO) lra Title III involves one of the seven "sensitive circumstances," it must be
approved by FBIHQ.
(UIIFOUO) The foUowing five sensitive circumstances require the approval of a Deputy
Assistalft Director (DAD) or higher from the Criminal Investigative Division (CID),
Counterintelligence Division (CD), or Counterterrorism-Divisi9n (CTD), as appropriate:

1. (tJlIFOUO) Significant privilege issues,or First Amendment concerns (e.g., attorneyclient privilege or other privileged- conversations or interception of news media
representatives);

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2. (UI/FOUO) Significal1t privacycQncerns (e.g., interceptions of conversations in a
bedroom or bathroom);
3. (UlIFOUO) Applications based on "relaxed specificity" (Le., "roving" interception)
under 18 U.S.C. § 2518(11)(a) aild (b);"

4. (U//FOUO) Applications concerning Domestic Terrorism, Internati9nal Terrorism, or
-Espionage investigations; or
5. (U/IFOlJO) Any situation dee~.ed appropriate by the-AD ofcm or OGC.
(UlIFOUO) The following two sensitive circum::;tances require the approval of the Director, .'_
the Acting Director, Deputy Director, or the EAD for the Criminal Cyber Response and
Services Branch, or the EAD for the National Security Branch, Qf the respective Assistant
Director for·Cotmterterrorism Of Counterintelligence:

6. (U/IFOUO) "Emergency" Title III interceptions (Le., interceptions conducted prior to
judicial approval under 18 U.S.C. § 2518[7]); or
7. (U/IFOUO) The interception of communications of members of Congress, federal
judges, high-level federal.officials, high-level state executives, or members of a state
judiciary or legi~lature is anticip,!tecl, ..
(V//FOUO) All requests for electronic surveillance that involve one of the above "sensitive
circumstances" must be reviewed by the OGC prior to approval.
(UI/FOUO) With the prior approval of the Attorney General, or Attorney General's designee,
the United States Attorney or the Strike Force Attorney must apply to ~ federal judge for a
court order authorizing the interception of communications relating to one or more of the
offenses listed in Title III (18 U.S.C. § 2$16). Judicial oversight continues into the
operational phase of the electronic surveillan~e-installation, monitoring, transcribing and
-handling of recording media. '
(UIIFOUO) An extension order may be sought to continue monitoring beyond the initial 30day period without a lapse in time. When a break in coverage has occurred, a renewal order
may be sought to continue monitoring the same interceptees or facilities identified in the
original 'authorization. The affidavit and application in support of an extension or renewal
must comply with all of the Title III requirements, including·approval of the Att9rney
General or designee. Except as explained below, extensions that occur within 30 days of the
original Title III order do not require review by the SAC or designee. After a lapse of more
than 30 days, the SAC-or designee must review and request renewed electronic surveillance.
(UIIFOUO) There may be situations or unusual circumstances that require the FBI to adopt
an already existing Title III froin ano~her federal law enforcement agency. This'will be
approved on a case-by-case basis, only in exceptional circumstances.

(UI/FOUO) Before the FBI begins or adopts the administration ofa Ti~le III, tpe Field Office
must obtain SAC or designee approval. Thereafter, e~tensions and renewals within 30 days
do not require SAC or designee approval.
(UlIFOUO) Emergency Title III interceptions (e.g., interceptions conducted prior to judicial
approval under 18 U.S.C. § 2518[7]) - [Hyperlink to Memo dated May 22. 2008 Standard
arid Process Authorization]
.
.
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situation arises after re ular business houis

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(UIIFOiJO) Disoute Resolution for both FISA and Title III Aoolications
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(UlIFOUO)\,

11.12.5.

(U) Duration of Approval

A. (U)FISA
(U/IFOUO) FISC orders for ELSUR surveillance are provided for the period oftime
specified in the or<ler that will not exceed: 90 days for United States persons; 120 days for
han-United States persons; and one year for a foreign power, as defined in 50 U.S.C.
§ 1801(~) (D(2) or (3). For United States persons, renewals ofFISA Orders may be
requested,for the ~ame period of-time originally allthorized 'baseci ~pona contiQuec! showing
'ofprobable cause. For non-United States persons, renewals 9an be for a period notto exceed
one year. All renewal requests should be submitted to DOJNSb by the requesting Field
Office atJeast 45 days prior to the expiration of the exist~ng order. These requests are to be
submitteq using t~e FlSA Request Form process in FISAMS.

B. (U) Title III
(Uj Title III ELSUR orders are for a period not ~o excee~ 30 'days, with subsequent 30 day
ex~epsions as authorized by the court.
~ ,
'

11.12.6. (D) Specific Procedures
A. (U) FISA
(U/IFOUO~,--",,--

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I. (UI/FOUO) FISA Verification of Accuracy Procedures

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B. (V Title III
I. (U//fOUO) The requirements in 18 V.S.C. § 2518 must be followed meticulously in the
preparation of a Title III application. In addition, the following points must be covered;
a. (UlIFOVO) Probable cause must be current;
b. (ViIFOVO) There must be a factual basis for concluding.that normal investigative
procedures 'have been rried and failed'or a demonstration why these procedures
appear to be unlikely to succeed or would be too dangerous if tried ("boilerplate"
statem.ents in this respect are unacceptable);
c. CUI/FOVD) If the subscriber of the telephone on which coverage is sought is not
one of the principals, attempts t.o identify the subscriber,inust be made;
d. CUI/FOVQ) Minimization will be o~cur, as statutorily required, if the coverage
involves a public telephone booth, a r~stllurant table, or the like;
e. " CUI/FOUO) The facilit or remises to be covered is'described full

I

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f.. (UlIFOUD) At least 10 days prior to submitting the Title III request to.DOl OEO,
the Field Office must forward an electronic communication to FBIHQI
I
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2. (UlIFOUQ)1

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3. (VIIFODOy For details on when, how, and where to conduct pre-Title IIIELSUR
searches, refer to CID PG.

IL 1F7I"':;'i0:rU; : O, )~.c;-:,a:-se: -:a;,:;g:;:en:-t-:-s:-;m_u::,:st:-:U;-:,s=---eth_9=-;:;~~_~__~~-:-~

" .~ .,....1

4· (.,.U1

""'=_,"",

T7

_, _

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5..(OIlFOUO) For additional guidance, see ELSUR Manual.

11.12.7. (U) Notice and Reporting'Requirements
A.
.FISA

«()

(UIIFOUO~

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B: '(U) Title lIT
1. CU/IFOUO) The anticipated interception of conversations related to a "Sensitive
InvestigativeMatt~r" as defined in the AGG-Dom, Part VH.N, requires.notice to the
appropriate FBIHQ Unit Chie( and Section Chief, and DOl'Criminal Division.
2.. iUlIFOUO)1

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.

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3. (U/IFOUO)\

I

4.l--(IU-//~FO-U-JO"""fj~------------------""--'

I

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5. (U//FOUO) Upon completion of a Title III ELSUR activity, ,the Form,2 r~port is
required to he submitted per 18 V.~.C. § 25 L9. For details on the completion and
.
submission of the Form 2 report, see the cm PG.

11.12.8. (U) Compliance and Monitoring
A. (U)FISA
(U//FOUO)\I-

b2

--.;..._...,.-

_

B. (U) Title III
(UI/FOUO) Upon completion ~fTitle III ELSUR activIty, the Form 2 r~portis required to be
submitted per 18 U.S:C. § 2519. For details on the completion and submission of the Form 2
.
report, seethe cm PG.
1~.12.9.

(U) SpedlllCircumstances

(V)FISA

..-;,~

(V) Under 50 V.S.C. § .1802, the President, through the Attorney General, may authorize
electronic surveillance under·FISA without a court order for periods of up to one year, if the
Attorney General cet:l:ifies in writing under oath that the surveillance will be. solely directed at
acquiring communications that are transmitted by means that are exclusively between or among
foreign powers and· there is no substantial likelihood of the surveillance ~cquiring the contents of
communications to which United States Persons are parties.

11.12.10. (U) Other'Applicable Policies
A. (U) FISA

1. (UI/FOUO) CO Policy Guide
2. (UlIFOUO) CTD Policy Guide
3. (UI(FOUO) Investigat!ve Law Unit Library
4. (U/IFOUO) Foreign intelligence Surveillance Act (FISA) Unit
B. (UlIFOUO) OTD PG

1. (U//FOUO) Title III
2. (UI/FOUO) Memo dated May 22, 2008 Standard and Process Authorization
3. (UI/FOUO) ELSUR Manual
4. (U/IFOUO)CID PG
5. (UI/FOUO) oro PG

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11.13. (U) Investigative Method: Physical searches, including mail openings, requiring
judiciai order or warrant
' .
(U) AGG-Dom, Part V.A.12.

11.13.1. (U) Summary

(D) The Fo~rt~ Amendment to the United States Constitution governs all searches and seizures
by government agents. The Fourth Amendment, contains two clauses. The first establishes the
prohibition against unreasonable searc/;1es and seizures. The second provides that no warrant
(authorizing a search or seizure) will be issued unless based on probable cause. An unlawful
search does no~ preclude a prosecution. The rem~dy to the defendant for an unlawful search IS
suppression of the evidence resulting from the illegal seizure.
(U//FOUQ) Annlication:1

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(U) A search is i;\ government invasion of a person's privacy. To qualify as reasonable
expectation of privacy, the indiv'idual must have an actual subjective expectation of privacy and
society must be prepared.to recognize that expectation as objectively reasonable. See Katz v.
United States, 389 U.S. at 361. The ability to conduct a physical search in an area or situation
where an iTldividual has a reaspnable expectation of privacy requires a warr~nt,or order issued by
a court of competent jurisdiction or an exception to the requirement for such a warrant or-order.
The warrant or order must be based on probable cause. The United States Suprem~ Court defines
probable cause to search as a "fair probability that contraband or evidence <;>fa crime will be
found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). A government agent
may conduct a search without a wl!-r'rant based on an individual's voluntary consent. A search
based on exigent circumstances may also be conducted withou~ a warrant, 'but the requirement
for probable cause remains.
'
11.13.2. (D) Legal Authority

(U) Searches conducted by the FBI must be in conformity with FRCP\Rule 41: FISA, 50-U.S.C.
§§ 1821-1829; or E.O. -12333 § 2.5.
.

,11.13.3. (U) Definition oflnvestigative M~thod
(U) A physical search constitutes any physical-intrusion within the United States into premises or
property (including examination of the iriterior of property by technical means) that is intended
to result in the sei~ure, reproduction, inspection,.ar alteration of information, material,or
property, under circumstances in which a person has a reasonable expectation of privacy.

-

.

(U) A physical search requiring a warrant does n'Ot include: (i) electronic surveillance as defined
in FISAor Title. III; or (ii) the acquisition by the United States Government offoreign
intelligence information from international foreign communications, or foreign intelligence

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activities conducted according to otherwise applicable federal law involving a foreign electronic
c.ommunications systell1, using a means other than electronic surv.eillance as defined in FISA.
A. (U) Requirement for Reasonableness. By the terms of the FQu:rth Amendment a search.
must be reasonable.at its incention and reason~hle in it" . . I
. L

~.
.

'(U) Reasonable.Expectation· of P;ivacy•. The right of-privacy is a personal right, not a
property concept. It safeguards whatever an individual reasonably expects to be private. The

pr9tection.notmally includes p~rsons, resIdences, vehicles, other personal property, private
conversations, private papers and records. The Supreme Court has determined that there is nQ
reasonable expectatiop of privacy in certain areas or information. As a result, government
intrusions into those areas do not constitute a search and, thus, do' not have to meet the
requirements of the Fourth Amendment. These areas include: (i) open fields; (ii) prison cells;
(iii) pubiicaccess areas; and (iv) vehicle ideptification numbers. The Supreme Court has also
determined that certain governmental practices do not involve an intrusion into a reasonable
expectation of-privacy apd, therefore, do not amount to a·search. These practices include:
'(i) a~rial'sur:veiUahce conducted'from navigable.airspace;'(ii)fieldtest'ofsuspected
controlled substance; and (iii) odor detection. A reasonable expectation of privacy maybe
terminated by an individual taking.st<;ps to va IUritarily relinquish the expectation of privacy,
such as abandoning property or setting trash at the edge of the curtilage or beyond for
cQllection.

C. (U) Issuance of search warrant
1. (U) Under FRCPRl.\le 41, upon the requ~st of a federal 'law enforcement officer or an .
attorney for the govefIlment, a search warrant may .be issued by:
a. (U) a federal m.agistrate judge, or if-none is'reasonably available, ajudge of a
state court ofrecord within the·federal.district, for a search of property or for a
persori'within the district;
b. .(U) a federal magistrate jUdge for a search of property or for a person either
within or'outside the ~istrict if the property or person is within the district when
the warrant is soughtbut might move outside the district before the warrant is
exec,:uted;
c. (U) a federal magistrate judge in any·district in which activities related to the
terrorism may' have occurred, for a search ofprop~rty:or for aperson within or
outsid~ 'the district, in an investigatIon of domestic terrorism ot international
terrorism (as defined hil8 U.S.C. § 2331);·and
d. (U) a magistrate wit~ authority in the district to issue. a warrant to install a
tracking device. The warrant may authorize use of the device to track the
movement of a person or property located'within the district, outside, or both.
2. (0) Physical searches related to a national security purpose may be authorized by the
FISC. (50 U.S.C. §§1821-'1829)

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D: (U) Property Or Persons That May be Seized wit~ a Warrant.
(U) A warrant may be issued to search for and seize any: (i) property that constitutes
evidence of the commission of a criminal offense; (ii) contraba!ld,lhe fruits of crime, or
things otherwise criminally possessed; or (iii) property designed or intended for use or that is
9r has been used as the means of committing a criminal offense. In addition to a conventional
search conducted following iss1.!ance ofa warrant, exampfes,ofsearch warrants'include:

1. (U) Anticipatory Warrants
(U) As the name suggests, an anticipatory warrant differs from other search wammts in
that it is not supported by probable cause to believe that contraband exists at the premises
to be searched at the time the warrant is issued. Instea~, an anticipatory s~arch warrant is
validly issued where t!Jere is probable cause to believe that a crime has been or is being
committed, and that evidence 'of such crime will be found at the described location at the
time of the search, but only after certain specified events transpire. These conditions
precedent to the execution of an anti,?ipatory warrant, sometimes referred to as
"triggering events," are integral to its validity. Because probable cause for an anticipatory
warrant is contingent on the occurrence of certain expected or "triggering" events,
typi~ally.Jh.e ft11Mredeliyery:, ~ale, orl'urcha~e 9f contrabag9, th~ judge making.the
probable ~ause determination must take into 'account the likeirhood iliat the triggering
event will occur on schedule and as predicted. Should these triggering ,events'fail to
materia.lize, the anticipatory warrant is void.
2. (U) Sneak and peek search warrants

(U) A sneak and peek search warr,ant allows law enforcement'agents to surreptitiously
enter a location such as a building, an apartment, garage, storage shed, etc., for the
purpose of looking for and documenting evidence of criminal activity. The purpose'of
this type of warrant is to search for and seize property (either tangible or intangible)
without immediately providing notice of tile search and a return on the warrant to the .
owner of the property searched or seized. See FRCP 41(f)(3). A sneak and peek warrant
!S used to gather additional evidence of criminal activity. without prematurely exposing an
on-going investigation, The evidence discovered during a sneak and peek search may be
used to support a request for a conventional search warrant.
'

3. (U) Mail Op,enings
(U) Mail in United States postal cl)annels may be searched only pursuant to court order,
or presidential authorization. Unit~d States Postal Service regulations governing such
activities must be 'followed. A search of items that are being handled by individual
courier~, or commercial courier companies, under circumstances in which there is a
reasonable expectation of privacy, or have been sealed for deposit into postal channels,
and that are discovered within properties or premises being searched, must be carried out
according to unconsented FISA or PRCP Rule 41 physical search procedures.

4. (U) Compelled Disclosure ofthe'Contents ofStQred Wire or Electr~)Dic
Communications

a

(U) Contents in "electronic storage" (e.g., unopened e-mail/voice mail) require search
warrant. See 18 U.S.C. § 2703(a). A distinction is made between the contents of
communications t~at are in electronic storage (e~g., unopened e-ma.i!) for less than 180

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days andthose in "electronic storage" for longer than 180 days, or those that are no
longer in "electronic storage" (e.g:, open~d e-mail). In enacting the ECPA, Congress
concluded that customers may not retain a "reasonable expectation of privacy" in
information sent to network providers. However, the contents of an e-mail message that
is unopened should nonetheless be protected by Fourth Amendment standards, similar to
the contents ofa regularly mailed letter. On the other hand, if the contents ofan unopened
message are kept beyond six months or stored on behalf of the customer after the'.e-mail
has been' received or opehc;d, it should be treated the same as a business record in'the
hands of a third party, such as an accountant or att0rtley. In that case, the government
ll'!ay subpoena the records from the third party-without running afoul of eitherthe Fourth
or fifth Amendment. If a search warrant is used, it may be served on the provider without
notice to the customer or sl,lbscriber.
. 11.13.4.

(U) Approval Requirements fodnvestigative Met~od

A. (U//FOUO) Search warrants issued under authority ofFRCP Rule 41: A warrant to
search is issued by a federal magistrate (or a state court judge if a federal magistrate is not
reasonably available). Coordination with the USAO or DOl is required to 9btain the warrant.

B. -(U//FqUO)FISA: In national security investigations, Fi~ldOffi_ce r~911~~~ forHSA . _.
authoriied.physical searches must be submitted to .FBIHQ using .the FBI FISA Request Form.
Field Office requests for FISA approval are tracked through FISAMS. This form should be
completed by the case agent.
C. (U//FOUO) Sensitive Investigative Matter: Notice to the appropriate FBIHQ substantive
Unit Chief and Section Chief is required if the matter under investigation is a sensitive
investigative matter. Notice to DOJ is also required, as described in DIod Section 10.
11.13.5.

(U)'Duration of APproval

(U) T~e (juration for the execution of a warrant is established, by the ,court order or warrant.
11.13.6.

(U) Specific Procedures

A. (U) Obtaining a Warrant under FRCP Rule 41
(U) Probable Cause. After receiving an affidavit or other information, a magistrate judge or
ajqdge of a state court of record must-issue the warrant if there is probable cause to search
for a~d seize a person or property under FRCP Rule 41(c). Probable cause exists where "the
facts ahd circumstances within the FBI employee'~ knowledge, and which they had
reasonably trustworthy information are sufficient in themselves to warrant a person of
reasonable caution in the belief that..." a crime ~as been ods being committed,and ~hat
seizable property can be found at the place qr on the person to be searched; Probable cause is
a reason~ble beliefgrounded on facts: In judging whether a reasortabJe belief exists, the test
is whether.such a belief would be engendered-in a prudent person with the officer'nraining
and ,experience. To establish probable c~use, the affiant must demonstrate a basis for
knowledge and beliefthat-the facts are true and thatthere is probable cause to believe the
items listed in th~ affidavit will be found at the, place to be searched.

of

1. (U) Requesting a Warrant in t~e Pre.sence of a Judge.
a. (U) Warrant on an Affidavit: When a federal law enforcement officer or an
attorney for the government presents an affidavit in support ofa warrant, the

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judge may require the affiant to appear personally and may examine under oath
the affiant and any witness the affiant produces.
b. (U) Warrant on Sworn Testimony: The judge may wholly or partially dispense
witl:i a written affidavit and base a warrant on sworn testimony if doing so is
reasonable under the circumstances.
c. CU) Recording Testimony; Testimony taken in support'of a warrant must be
, recorded by a co.urt reporter or by a ~uitable recording device,and the judge must
file the transcript or recording with the clerk, along with any affidavit.
0

2.. CU) Requesting a Warrant by Telephonic or Other Meansa. (U) In General: A magistrate judge may issue a warrant baseg on information
communicated by telephon~ or other appropriate means, including facsimile
transmission.
b. (U) Recording Testimony: Upon-learning that an applicant is requesting a
warrant, a magistrate judge must: (i) place underoath the applicant and any
person on whose testimony the application is based; and (ii) make a verbati'm
record of the conversation with a suitable recoroing device, if available, or by a
couftrepoIter,or'inwriting.
c. (U) Certifying Testimony: The magistrate judge must have-any recording or
court reporter's notes transcribed, certify the transcription's accuracy, alld file a
copy of the record and the transcription with the clerk. Any written verbatim
recor4 must be signed by the magistrate judge and filed with t~e clerk.
d. (U) Suppression Limited: Absent a finding of bad faith, evidence obtained from
a warrant issued under FRCP Rule 41 (d)(3)(A) is not subject to suppression on
the ground that issuing the warrant in that manner was unreasonable under the
circumstances. 3. (U).Issuing the Warrant
-(U) In general, th~ magistrate judge or a judge of a state court of record must issue the
warrant to an officer authorized to execu'te it. The warrant must identifythe person or
property to be searched, identify any person or property to qe seized, and designate the
magistrate judge to whom it must be returned. The warrant must command the officer to:(i) execute the warrant within a specjfied time no longer than 10 days;'(ii) execute the
warrant during the daytime, uniess the judge for good cause expressly authorizes
execution at another time; and (iii) re~m the warrant to the magistrate judge designated
in the warrant.
4. (U) Warrant by Telephonic or Oth,er Means
(U) If a magistrate judge decides to proceeq under FRCP Rule 4 I (d)(3)(A), the following
additional procedures apply:
a. (0} Preparing a Proposed Duplicate Original Warrant: The applicant must
prepare a "proposed duplicate original warrant" and must read or otherwise
transmit thecontents,of that document verbatim to the magistrate judge.

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b. (D) 'Preparing an Original Warrant: The magistrate judge must enter the
contents of the proposed duplicate original warrant into an original warrant.
c. (U) Modifications: The· magistrate judge may direct the applicant to modify the
proposed duplicate original warrant. In that case, the judge must also modify the
original warrant.
d. (U) Signing the Original Warrant and the Duplicate Original Warrant: Upon
determining to issue the warr~nt, the m~gistrate judge must immediately sign the
original warrant, enter on its face the exact time it is issued, and direct the
applicant to'sign the judge's name on the duplicate original warrant.
5. (U) Executing and Returning the Warrant
a. (U)Noting the Time: The officer executing tl)e warrant must enter on its face the
exact date and time it is executed.
b. (D) Inve~tory: An officer present during the execu~ion of the warrant must
,prepare and .verify an inventory of any property seized. The officer must do so in
the presence.of another officet.and,the,petson from whom,-or from whose
premises, the property was taken. If either one is not present, the officer must
prepare and verify the inyentory in the presence of at least one other credible
person.
c. (D) ReceIpt; The officer executing the warrant must: (i) give a copy ofthe
warrant and a receipt for the.property ~ken to the person from whom, or from
whose premises, the property was taken; or (ii) leave a copy of the warrant and
receipt at the place where.the officer took the property.
Q. (D) Return: The officer executing the warrant must promptly return it - together

With a copy ofthe inventory - to the magistrll~e judge designated on the warrant.
The judge must, on request, give a copy the inventory to the person from whom,
or from whose premises, the property was.taken and to the applicant for the
warrant.

of

6. (U) Fonvarding Papers to the Clerk .
(0) The magistrate judge to whom the warrant is returned must attach to the warrant a
c,opy ofthe return, the inventory, and all other related papers and must deliver them to the
clerk in the district where the property was seized. (FRCP Rule 41)
7. (0) Warrant for a Tracking Device
a. (0) Noting the time: The officer executing a tracking device warrant must enter
on it the exact date and time the device was .installed and the period during which
it was used.
b. (D) Return: Within 10 calendar days after the use of the tracking device has
ended, the officer executing the warrant inust return it to the judge designated in
the warrant.
c, (D) Service: Within 10 calendar days after use of the tracking device has ended,
the.officer executing the warrant mustserve a copy ,of the warrant on the person
who was tracked. 'Service may be accomplished by delivering a copy to the person

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who, or whose property was tracked; or by leaving a copy at the person's
residence or usual place of abode with an individual of suitable age and discretion
whp resides at that location and by mailing a copy to the person's last known
address. Upon request of the ,government, the judge may delay notice as provided
in FRCP Rule 41 (f)(3).

8. (U) I)elayed Notice
(U) Upcm,the government's request, a magistratejudge-or if autho~ized.byFRCP Rule.
41 (b), a judge of a state court of record-may d~lay any notice required by FRep Rule
41 if the delay is authorized by statute.

B.. (U) Obtaining a FISA Warrant
(D) Applications for court-authorized physical ~earchpursuant to FISA must be made by a
federal officer in writing upon oath or affirmation and with the specific approval of the
Attorney General. (See 50 U.S.C. § 1823) Each application must include:
1. (D) Theidentity of-the federal'officer making the application;
2. (D) The authority conferred on the Attorney General by the President and the apprqval of
the Attorney General to make the applicatiqri;
3. (U) The identity, if known, or description of the target of the physical search and a
detailed ~escription pf the premises .or property to be searched· and o~ the information,
material, or property tO'be seized, reproduced, or altered;
4. (U) A statement of the facts and'circumstances relied upon and submitted by the
applicant that there is probable cause to believe that:
a. (U) The target is a foreign power or an agent of a foreign power, provided that no
United States person may be considered a foreign power or an agent of a foreign
power solely on the basis of activities 'protected by the First Amendment to the
Constitution of the United States; aQd
b; (U) Each of the facilities or places at which theFISA order is,directed ~s being
used by a foreign power or an agent of a foreign power.
5. (U) "In determining whether or not probable cause exists for purposes of an order under
;;0 l).S.C. § 1823(a)(3), a judge may consid~r past activities,of. the·target, as well as factS
and circumstances relating to current or future activities of the target." 50 U.S.C.
S1805(b). As it relates to United States citizens or. aliens lawfully admitte~ for
permanent residence, "agent of a foreign power" means any person who:
a. (U) Knowingly engages in clandestine, intelligence-gathering activities for or on
behalf of a foreign power, whose activitiesinv:olve or may involve a violation of
the'criminal statutes of the United States;
.
b. (U) Pursuant to the direction of an intelligence service or network of a foreign
power, knowingly engages in any other clandestine intelligence activities for or
on behalf of such foreign power, whose activities involve or are about to involve a
violation oftl1e criminal statutes of the United States;

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c. (D) Knowingly engages in sabotage OJ; international terrorism, or activities that
are·in preparation therefore, for or on behalf of a foreign power;
d. (D)'Knowit'1gly enters the United States under a false or fraudulent identity for or
on behalf of a foreign power or, while in the United States, knowingly assumes a
false or fraudulent identity for or on behalf of a foreign power; or
e.. (U) Knowingly aids or abets,any person in the conduct of activities' described in
, subparagraph"'a,' 'b,' or 'c,' above or knowingly conspires with any person to
engage in activities described in subparagraph 'a,' 'b,' or 'c:' above. 50 U.S:C.
§ 1801(Q) (2).
(D) For purposes of the above statute, 50 U.S.C. § 1801(a)(l) defines "foreign
power" to include "a group engaged in international terrorism or activities in'
preparation therefore," 50 U.S.C. § '1801(a) (4), as well as, among.otp,er things, "a
foreign government or any component thereof, whether or not recognized by the
United States." Title 50 ofthe United States Code S,ectio'n 1801(c) defines
"int~rnational terrorism" a$ a'ctivities that:
(a) (U) Involve·violent acts or acts dangerous to human life thatare a violation of
the crimiiiallaws ofthe.United.Statesor'ofanyState,Qr tl1at would. be a
criminal violation if committed within the jurisdiCtion of the Urtited States or'
any State;
(b) (U) Appear to be intended(1) (U) To'intiniidatyor coerce a ciyilian population;
(2) (U) To influence the polic:y of a government by intimidation or coer.cion;
or
(3), (U)To affect thy conduct of a government by assassination or kidnapping;
aild

(c) (D) Occur totally outside the U,nited States, or transcend national'poundaries
inteims of.the means by which they are accomplished, the'persons they
appear intendt:d to coerce or intimidate, or the locale in: which their
perpetrators operate or seek asylum by the applicant to justify the belief that:
(i) the target ~s a foreign power or agent of a foreign pow~r; (ii) the premises
or property to be,se~rched contains foreign int~Jligence information; and (iii)
the premises' or property t9 be searched is owned, useq, possessed by, or is' in
trapsit to or from a foreign. power or·an agent of a foreign,power.
6. (D) A st~tement of the proposed minilllization procedures that have been approved by the
Attorney General;
7. (D) A detailed descriptioIJ, 9f the nature of the foreign intelligence informatiqn sought and
·the manner in which the physical search will be conducted;
.8. (D) A Certification by.the Director of-the FBI or one of nine other individuals authorized
by Congress or the President to provide such certifications that the information being
_ sought is fOJ:"eign intelligence information; that a significant purpose ofthe search is to
. obtain foreign. intelligence information; th~t such information cannot reasonablY'be

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obtained by normal investigative techniques; that the information sought is "foreign
iQteUigence information" as defined by FISA; and'inCludes a statement explaining,the
certifier's basis for the certification.
(U) Note: Title 50 of the United States Code Section 1804 specifies the Assistant to the
President for National Security Affairs; E.O. 12949, as amended speCifies the Director of
the FBI, I?eputy Director of the FBI, the Director of National Intelligence, the Principal'
, Deputy Director ofNational Intelligence, the Director of the Central'Intelligence;Agency,
the Secretary of State, the Deputy Secretary of State, the Secretary of Defense, and the
D~puty Secretary of Defense as appropriate officials to make certifications required by
FISA.
9. (U) Where the physical search may involve the residence of a United States pers~:in, the
Attorney General must state what investigative techniques have previously been used to
obtain the foreign intelligence information concerned and the'degree to which thl?se
techniques resulted in acquiring such information;
.

i o. (U) A statement ofthe facts <;oncerning all previous applications before the FISA court
that have been madejnvoLvinganyoftlte.pc;:r~gns, premises, or property specified in the
application and the actions taken on each previous application; 11.(U) The Attorney General may require any other affidavit or certification from any other
officer in connection with an application; and
12. (U) The Court may require the applicant to furnish such other information as may'be
necessary to make the detenninations required to issue an Order.
C. (U) Length of Period of Authorization for FI~C Orders
1. (U) Generally, a,FISC Order approving,an'unconsented physical search will specify the
period of time during which physical searches are approved and provide that the
,government will be permitted' the pel,'iod of time necessary to achieve the purpose, or for
90 days, whichever is less, except that authority may be:
a. (U) For no more than' one year for "Foreign Power" targets (establishments); or
b. (U) For no more than 120 days for an agent of a foreign power, with renewals for
!lp'to one year for non-United States persons.
2. (U) An extension of physical sear~h authority may be granted on the same 'basis as the
original order upon a separate application for an ~xtensioil and upon new findings made
in ~he same manner as the original order.
3. (U) Emergency FISA Authority
a. (U) The Attorney General may authorize an emergency physical search under
FISA when he reasonably makes a determination that'an emergency situation
exists that precludes advance FISA court review and approval, and there exists a
factual predication for the issuance of a FISA Court Order. In such instances, a
FISC judge must be informed by the Attorney General or his designee at the time
of the authorization and an application according to FISA requir~ments is
submitted to the judge as soon as is practicable but not more than seven (7) days
after the emergency authority has been approved by the Attorney General.

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b. (D) If a court order is denied after an emergency authorization has been initiated,
no infonmitio!l gathered as a result of the search may be used in any manner
except if with the approval of the Attorney General, the information indicates a
tht:eat of death or serious· bodily harm to any persoI).
c. (U/IPOUO) For an einer ene

h sical search.

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4. ({j) Special.Circumstances
(U) The President through the Attorney General may also authorize a physical search
under FISA without a court order for periods of up to one year, .jfthe Attorney General
certifies that the search will be solely directed at premises, information, material, or
property that is used exclusively by or under the open and exclusive control of a foreign
power; there is no substantial likelihood that the physical search w.ill involve the. premises,
information, material, or property of a United States person; and there are minimjzation
procedures that have.been reported to the court ahd Congress. The FBI'~ involvement in
such approvals is usually in furtherance of activities pursued according to E.O. 12333.
Copies of such certification~~re t()bt:: tr<!I}sIjlittcd t(? tl!e FISA Court (see 50 U.S.C.
§ 1822[aJ).
.
(U) Information concerning United States persons acquired through unconsented physical
searches may o.nly be used according to minimiza~ion procedures. See: 50 U.S.C.
. §§ 1824(d)(4) and 1825(a).
5. (D) Required Notice
(U) If an authorized search involves the premises of a United States.person, and the
Attorney General determines that there is no national security interest in continuing the
secrecy. of the sel;lrch, the AttoI1ley General mu~i provide notice to the United States
person that the premises was searched and the identification o'f any property seized,
altered; or reprod~ced during the search.
.

6. (U/IFOUO)'FI~A Verification of Accuracy Proc~dures

'1

(UlIPOUOJ

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a. CD/IPOUO) Each case file for 'Yhic~ an application'is prepared for' submission to
the FISC will incluge a sub-fileito be labeled
']This sub-file'
is to contain copies of the supportive documentation relied upon when making the
~tions to the!
[
L..........Jfile is to incluqe: .
.

I

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,I

i.

2

I(UIIFOUOj

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.

ii. (UlIFOUO)I~

'/

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iii. (U//FOUQ)J
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7. CU//FOOO) FISA Physical Search Administrativ~Sub-file
CUI/FOUO) Each'case file for which an application is. or has been prepared for
I
submission to the:FI
ill include a sub-file to be labeledlL.,.-,:":""""_·",,,:,,:,,,"~_-:--_
..
This sub-file is to contain copies of all application~ to and
'or ers issued by the FISC for the conduct of physical searches in the investigative case.

. .: I::::~:;
1.

...

m

•••

.

•••

•

.~.~~E ~~E
.~

8. CUI/FOUO) FISA Review Board for FISA Renewals
(U//FOUO~

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I
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a. (UlIFOUOl
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b. (UitFOUO)1
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c. (UI/FOUO~

I

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.
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d. (UlIFOUO) Annealinl! the Decision ~f.th., .... .

Rno~<f.r

I

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(UlIFOUO] .

I
r-

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.'

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11.14. (U) Investigative Method: Acquisition offoreign intelligence information in
conformity with Title VII of t)le Foreign lrihilligcnce Surveillance Act

11.14.10 (U) Summary
(U) Titles I and lII'oftheFISA (codified as 50 U.S~C. §§ 1801, et seq.) provide the standard,
.traditional methods'of collection against agents of foreign powers (including United Stites an~
noil-United States persons) and foreign power establishments inside the United States. Title VII
ofFISA, "Additional Procedures·Regarding Certain Persons Outside the United States," provides
means for collections ofindividuals outside th.e United States.
11.14.2. (U) Legal Authority
(U) FISA Amendments Act of 2008 (122 Stat 2436) .
(U) AGG-Dom, Part V.A.!3

11.14.3. (U) Definition oflnvestigativeMethod'
(U) Title VILis·to be used for conducting.FISAs on certain persons located out~ide the United
.. .
. .
. _.
States
'11.14.4. (U/IFOUO) Standards for Use and Approval Requireme~tsfor Investigative
Method

(DI/FOU 0) See requirements under DIOG Sections 1-1.I 2 and 11.13 and requirements specified
above.
11.14.5. (U) puration of Approval
(UlIFOUO) See requiremen~s under DIOG Sections 11.12 and 11.13
.11.14.6. (U/IFOUO) Spec.ifIc CollectioriProcedures for Title VII
(U)Therelevant procedures (or collections) under Title VII are:

A.

(U) Section 702· "Procedures for Targeting Certain Persons Outside the United States
Other than United Sta~es Persons"
(UlIFOUO) Under Section 702, the Government has the authority to target non-United States
, persons who are located outside the United States if the collection is effected with the
assistance ofa United States provider and if the collection occurs inside the United States,
This section does not require a traditional FISA request. Rather, under this section the
Attorney General and the Director of National Intelligence are required to file yearly
determinations (filed as "Certifications") with the FISC that authorize the targeting of
persons reasonably believed to be located outside the United States to acquire foreign
intelligence information. The Certific.~tions are accompanied by, in the case of the FBI, an
affidavit signed by the FBI Director. In addition, the FBI is required to file "Targeting
Procedures" designed to ensure that the acquisition is limited to persons reasonably believed
to be 10cCited outside the Unitec.i States apd "to prevent the intention~l acq4isition of any
communicatio~s.as to which the sender and all intended recipients are known at the time of
tbe acquisition to locateciin the United States." Finally, the FBI is also required to follow
minimization.procedures.

be

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B. (U) Section 70~'· "Certain Acquisitions Inside the United States Targeting United States
Persons Outside th~ United States"
(UI/FOUO) Under Section 703, the Government has the authority to target United States

persons who are located outside the United States ifthe collect"ion is effected with the
assistance ofa United S~tes provider and if the collection occurs inside the United States.
This section only authorizes ,electronic surveillance or the ,acquisition of stored electronic
cominunfcations or stored electronic data that'requires a court ,order. Under this section, the
FBI
submit a FISA request and obtain a FISC order and secondary orders, as n~eded.
The.process is the same as the curient FISA process. Refer to the FISA Unit's website for
further information. This section allows for emergency authorization and the FBI's Standarci
Minimization Procedures apply to the collection. Finally, under the statute, the surveillance
must cease immediately if the target ent.ers the United States. If the FBI wishes to surveil the
United States person while he or ~he is in the United States, the FBI must obtain a separate
court order under Title I (electronic surveillance) andlor Title 1Il,(physical search) ofFISA in
order to surveil that United States person while tp.e person is located in the 'United States.

will

C. (U),Section704.., "Other Acquisitions,TargetingUnited States Persons Outside the
UJlit~d S~ates"

(UI/FOUO) Under Section 704, the Government has the authority to target Uriited States
persons who are located outside the United States ifthe collection occurs outside the United
States (i.e., without the assistance of a United States' provider). The statute requires thatthe
FISA court issue an order finding probable cause to \:>elieve that the United States person
target is an agent of ~forelgn power and reasonably believed to be located outside the United
States '\mdercircumstances in which th~ targeted United Stiltes person has a,reasonable
expectation of-privacy and a warrant would be required if the acquisitiQn were con.ducted iii
the United States for law enforcement p~rposes." Under this section; the FBI will submit a
FISArequest and obtain a FISC order bu~ wi!! not obtain secondary orders. The'process for
obtaining these orders kthe same as the currentFISA request process. Refer to the FJSA
Unit's intranet website for further information. This section allo~s for emergency,
authorization and the FBI's Standard Minimization Procedures apply to the collection.
Finally, surveillance authorized under this section must cease if the United States person
enters the, United States,but may be re-started if the person is again reasonably believed to be
outside the United States during the, authorized period of surveilla.nce. However, if there is a
need to surveil the target while the target is located inside the United States, a separate C9urt
order must be obtained.
(VI/FOUO) Generally, the FBI.requires the assistance of other ~SIC agencies to implement
thi~ type of surveillance: Specific proce4l.ires for requesting that another USICagency

implement the surveillance for the FBI, if necessary, are classified and·delineated in FBI
Corporate Policy 121 N.

D. (D) SectioJl 705 - "Joint Applications'and Concurrent Authorizations"
(U/IFOUO) Section 705(a), "joint applications," allows for the FISC to, upon request ofthe
FBI, authorize iljoint application for targeting a United States ,person under both Sections
703 and 704 (inside and'outsid~ the United States simultaneously).

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(U//FOUO) Section 705(b), "concurrent authorizations," states that if an order has been
obtained under Section 105 (electronic surveillance under Title I ofFISA) or 304 (physical
search under Title III of FTSA), the Attorney General may authorize the targeting of a' United
States'person while such person is reasonably believed,tobe located outside the United States.
Th~ Attorney General has this authority under E.O. 12333 § 2.5. In other words, if a United
States person target of a "regular" FISA travels outside the United'States during the
authorized period of the surveillance, the Attorney General, under Section 705(b) ~d E.O.
12333 § 2.5, can concurrently authoriZe surveillance to continue while the person is overseas
obvi~ting the need to obtain a separate order under Sections 703 or 704. To effectuate this
authority, the, Attorney qeneral's "Approval page" on'all FBI United States person FISAs
contains standard language authorizing surveillance abroad, if needed.
(U//F.OU01

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12. (U) Assistance to Other Agencies
12.1. (U) Overview
(V/IPOVO) Part II of the AGG-Dom authorizes the fBI to conduct invesJigations in order to
detect or obtain infonnation about, and preve~t and protect against, federal crillJ.~s and tilf~ats to.
the nationa\ security and to collect foreign intelligence. Part III of the AGG-Dom, Assistance to
OtherAgencjes, authorizes the FBI to provide investigative assistance'to other federal, state,
local or tribal, or foreign agencies'when the investigation has those same objectives or when the
investigative assistance is legally authorized for other purposes. Accordingly, FBI employees
may proviqe assistance even if it is not for one of the purposes identified as grounds for an FBI
investigation or assessment, if providing the assistance is othe'rwise authorized by law. For
example, investigative assistance is .legally authorized in certain contexts to state or local
agencies in the investigation of crimes under state or local law, as provided in 28 V.S.C..
§§ 540":-felonious killing of state and local law enforcement officer; 540A-violent crime
against ,travelers; 540B-serial killings, and,to foreign agencies in the investigation of foreign
law v!olations pursuant to international agreements. The FBI may use appropriate Ill.wful
methods in,any authorized illVestigative'assistanceactivity;

12.2. (U) Purpose and Scope
(U) The AGG-Dom pennitS: FBI personnel to provide investigative assistance to:
A. (U) Authorized intelligence activities of other USlC agencies;
B. (U)Any federal agency in the investigation offedCral crimes, threats to the national security,
foreign intelligence collection, or any other purpose that may be lawfuUy auth~rized;
C. (U) Assist the President in determining whether to use the armed forces pursuant to 10 D.S.C.
, §§ 331-33;when DOJ-authorized as described in Section 125:B.l.c, below;
D. (U) Coilectinfonnation necessary to facilitate public demonstrations in order· to prote~t the
exercise of First Amendment dghts and ensure public health and safety, when DOlauthorized and within the restrictions described in Section 12.5.B.1.d,' below;
E. (D) State or local agencies in the investigation of crimes ul1der state or local law where
authorized'by fedc:;rallaw (e.g., 28 U.S.C.§§ 540-felonious killing of state and local law
enforcement officer; 540A-violent crime against travelers; 5'40B-serial killings);
F. (U) State, local, or tribal agencies in the investigation of matters that may involve federal
crimes or threats to national security, Of for such other purposes as may be legally authorized;
and
G. (D) Foreign agencies in the investigations of foreign law violations pursuant to international
agreements, and as otherwise set forth below, consistent with'the interests of the United
States (including national security interests) and with due consideration of the effect on any
United States person.
(V) The FBI is further authorized to provide technical and scientific assistance to all duly
constituted law enforcement agencies, other .organizational units of the Department ofJustice,
and other federal agencies. 28 C.F.R. § O.85(g). The FBI's authority and procedures for
providi~g technical assistance is further set forth iIi Section 12.6 below.

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('0) Authorizeq investigative assistance,by the FBI to other ageQ.cies includes participation in
joint operations and activities with such agencies. (AGG-Dom, Part lIl.E.\) The procedures for
providing investigative assistance, together with the approval'and notification requirements, are
provided below.

12.3. (U/IFOUO) Standards for Providing and Approving Investigative Assistance to
Other Agencies
(U/IPOUO) The determination of whether to provi~e FBI assistance to other agencies-is both
statutory and discretionary and must be based on consideration of the following factors:

A. (U/IPOUO) Assistance is within the scope authorized by the AGG-Dom;

B. (U//fOUO) Assistance is not based solely on the exercise of First Amendment activities or
on the race,-ethhicity, national origin or religion of the subject;.and
C. (UI/FOUO) As~istance is an appropriate use of personnel and"financial resources.
12.4. . (U) Documentation, Record Retention and

Dissemin~tion

A. (U) Docum~~tati9n

(UI/FOUO) When providing assistance to a domestiQ"or forclgn agency; the required
doc!lmentation in an appropriate case file includes: (i) the name arid type of agency; (ii) the
investigative methods used; (iii) the opening and closing dates of the reauest· anci (.iv)
notifications required for the investigative activitv.!
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B.(U) Records Retenti9n"for Assistance Furnished to Another Agency
(U/IFOUO) A dat~base of records created with thel'
lis maintained to permit the
prompt retrieval of the status of ~he assistance activity (opened or closed), the dates of
opeJ.lihg and closing, and the basis for the assistance activity. (AGG-Dom, Part UI.E.3)

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C. (U) Dissemination of Information

I

(U/IPOUO) For unclassified information, thd
. should be used to document the .
dissemination of information to: (i). United States Intelligence Community Agencies; (ii)
United States Federal Agencies; (iii) State, Local, or Tribal AgenCies; and (iv)Foreign
Agencies. Dissemination to Foreign Agencies must be in accordancewith.the fBI Foreign
Dissemin.ation Manual, dated"May 23, 2008. Classified information must be disseminated
pursuant to applicable federal law, Presidential directive, Attorney General policy and FBI
policy.
"

12.5. (U) Duration, Approval and Notice for Investigative Assistance to Other Agencies
(U/!I:0UO) Investigative assistance th~t may be furnished to other agencies is described below
by agericy type. Dissemination of information to"other agencies must be consistent with Director

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ofNational Intelligence directiv.es, the AGO-Dam, DrOG Section 14, FBI Poreign
Dissemination Manual, and'any applicable MOUIMOA, law, treaty or other policy.
(UIIFOVO) Sensitive Investigativ,e Matter: Any assistance to other agencies inyolving a
sensitive investigative matter requires CDC review, SAC approval, and notification to the
l1Ppropriate FBIHQ substantive Unit Chief and Section Chief. (If a~sistance is to a foreign
agency, notification to the Office ofIntemational Operations (010) Unit Chief and Section Chief
is also r.equired.) Additionally, FBIHQ must provide notice to the DOJ Criminal Division or
NSD as soon as practicable, but not later than 30' calendar days after the initiation of anY'
assistance involving a sensitive investigative matter (see classified appendix for additional notice
requirements),

A. (V) United States Intelligence Community Agencies
1. (V) Authority
'(V(IPOVO) The FBI may provide investigative assistance (including operational support)
to authqrized intelligence activities of other VSIC agencies. (AGG·Doril, Part lILA)·
Investigative assistance must be in compliance with interagency memoranda of
understanding/agreement, if applicable. For,example,ospeCific approval and notification
requirements exist for CIA domestic activities.
2. (V) Approval

CV/IFODO) Prior SSA approval is required for providing assistance to th~ USIC when the
assistance uses investigative methods beyond those authorized in assessments. Assistance
to other agencies using an investigative method authorized.only for predicated
investigations requires supervisory approval at the same level required for the respective
investigative method ifused in an FBI investigation. Specifically, higher supervisory
approval and notification requirements may exist for conducting a joint operation (e.g.,
investigative operations with the Department of-Defense [DoD], Department of
Homeland Security), a sensitive investigative Illatter, and using particular investigative
methods as noted· in Sections 10 and 11, and the Division policy guides. Assistance for
investigative methods beyond those authorized in assessments must be dQcumented in the
FD-999. Approval for- use of specific technologies is set'forth in Section 12.6 below and
theOTD Manual.
B. (U) U~ited States Federal Agencies
1. (D) Authorities
a. (UIIPOUO) The FBI may provide assistance to any other federal agency in the
investigation of federal crimes or threats to the national 'security or in the coilection of
positive foreign intelligence. (Pursuant to Section 9, collection of positive foreign
intelligence requires prior approval from FBIHQ CMS.) The FBI may provide
investigative assistance to any federal agency for any other purpose that may be
legally autl1orized, including investigative assistan<:e !o the Secret Service in support
of its protective responsibilities. (AGO-Dam, Part III.BJ) See mOG Section 12.6
below for guidance in providing technical assistance to federal agencies,

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b. (UIIFOUO) The 'FBI' must follow MOUlMQA with other federal agencies where
applicable. Specific approval and notification requirements exist for CIA and DoD
.
domestic' activities.

c. (U) Actu~1 or Threatened Domestic Civil Disorders
I.

(U) At the direction of the Attorney,General, the Deputy Attorney General, or
the Assistant Attorney General for the Criminal Division, the FBI shalPcoIlect
information relating to actual or threatened civil disorders to assist theJ~resident
in determining (pursuant to the authority of the President under 10 U.S:C.
§§ 331-33) whether use of the arm~d forces or militia is required anc;! how a
decision to commit troops should be implemented. The information sought shall
concern such matters as: (AGG-pom, Part III:B.2)
(a) (Q) The size of.the actual or threatened disorder, both in number of people
involved or affected and in a geograp)Jic'area;
,
(b) UJ) The potential for violence;
(c) (U) The P9tential for e~pansion ofthl? djsord~r in lighLef community
condit1ons and underlying causes of the disorder;
(d) (0) The relationship 9fthe actual or threatened disorder to the enforcement of
federal law or court orders and the likelihood that state or local authorities will
assistih,ehforcing those laws or orders; arid
(e) (U) The extent of state or local resources available to handle the disorder.

ii.

(U) Civil disorder investigatiqns will be authorized only for a period of 30 days,
but the authorization maybe renewed for subsequent 30 day periods.

iii.

(D) The onlY investigative methods that maybe used during a Civil disorder
investigation are:
(a) (U) Obtain publicly available information;
(b) (0) Access and examine FBI and other DOJ records, and obtain information
from any FBI or other DOJ personnel;
(c) (U) Access and examine records maintained by, and request'information from,
,other federal, state,Jocal, pr.tribal, or foreign governmental entities'or
agc;:ncies;
(d) (0) Use online services, and resources ~whether nonprofit or commercial);
(e) (0)Interview members of the public and private entities; and
(UlIFOUO)Note: S,uch interviews may only be cQnducted if the FBI
employee identifies himself or herself as an FBI employee and accurately
discloses the purpose ofthe interview.
(f) (D) Accept information voluntarily ,provided by governmental or private
entities.

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(U) Other methods may be used only i(authori~ed by the Attorney G~neral,
. the Deputy Attorney General, or the Assistant Attorney General for the
Crim ina! Division.

d. (U) Public Health and Safety Authorities in Relation to Demonstrations

i.

(U) At the dIrection of the Attorney GeneraL the-Deputy Attorney General, or
the Assistant Attorney General for the Criminal Division, the FBI shall' collect
information relating to demonstration activities.that are likely tp require the
federal government to take actibnto facilitate the activities and provide public
health and safety measures with respect to those activities. The information
sought 'in such an investigation shall be that needed to facilitate an adequate
federal response to ensure public health and safety and to protect t{1e exercise of
First Amendment rights, such as:
(a) (U) The time; plage,and type of activities planned.
(b) (D) The number ofper~ons expecteq to participate.
(c) (U)'The expected means and routes of travel for participants and expected
thne Of arrival.
(d) ,(U) Any plansforJodging or housing of partlclpants in connection with the
demonstration.

ii.

(U) The only i~vestigative methods that may be used in an investigation,under
this paragraph are:
.
(a) (U) Obtain: publicly available information;
(b) (U)Access and 'examine FBI and other DOJ records, and.obtain information
from any- FBI or other DOl personnel;
(c) (U)Access and ex;amim.: records maintained by, and requ~st information from,
other federal, state, local, or tribal, or foreign governmental entities or
agenc.ies;
(d) (U) Use online

s~rvices and

resources (whether nonprofit or yommercial);

(e) (U) Interview of members of the public and private entities; and
(UIIPOUO) Note: Such interviews m,ay only be conducted if.'the'FBI
employee identifies himself or herself as an,FBI employee and· accurately
diselo'ses the purpose of the interview.

(f) (U) Aece~fiiliformation voluntarily provided by governmental or private
.
entities.
>

(U) Other methods may be used only if authorized by the Attorney General;
the Deputy Attorney General, or the Assistant Attorney General for the
Criminal Division.
2.

(0) Approval
. (UI/FODO) I'rior· SSA approval is required for assistance to another feqeral agency when
the assistanct;: uses investigative m~thods beyond those authorized in assessments.

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Assistan~e to

other agencies using an investigative method authorized only for predicated
investigations requires supervisory approval at the same level required for the respective
investigative method if used in an FBI investigation, as provided in Section I I. .
Specifically, higher supervisory approval and notification requirements may exist for
conducting ajoint operatiop, a sensitive investigative matter, and using particular
investigative methods, as noted in Sections 10 andU and in ~heOivision policy guides.
Assistance for ,investigative methods beyond those authorized in assessments must be
documented in the·FD-999. Approval for use of specific technologies is set forth in
Section 12.6, below and the'OTD Manual.

C. (U) State, Local, or Tribal Agencies
I. (U) Authorities
a. (U) The FBI may provide investigative assistance to state, local, or tribal agencies in
the investigation of matters that may involve federal crimes or threats to the n.atiorial
security, or for other legally authorized purposes. Legally authorized purposes include,
but are not limited-to, a specific federal statutory grant of authority such as that
provided by 28 U.S.C. §§ 540-felonious killing of state and local law enforcemel1t
officer; 540A-violent crime against travelers; ~4013-seIilll killings~ (A9G-pom,
PaffIlLC) The FBI is further authorized to provide other material, scientific and
technical assistance to state, local, and tribal agencies. (See 28 C.F.R. § 0.85[g] and
DIOG Section 12.6,.below.)
b. (UIIFOUO) The' FBI rIu-!st follow applicable MOU/MOA andlor treaties when it
provides assistance to state, local, and tribal agencies.
c. (U(IFOUO) As a federal agency, the FBI's authority to investigate criminal offenses
derives from federal statutes and is generally limited to violations offedera.llaw. See
18 U.S.C. § 3052, 28 U.S.C. § 533 (1) and 2~ C.F.R. § 0.85. With limited exceptions,
such as those cited in Section 12.2.~., above, the F~I does not have any federal
authority to investigate state crimes. FB1'empJoyees can assist in th.e investigation of
other criminal matters with state and, local authorities only if there is a reasonable
basis to believe that the investigation will prevent, detect or lead to evidence of II
violation of federal law or a threat to the national.securitv J

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0) Wh~n credible. information .is received by an FBI employee concerning

serious criminal activity not within the FBI's investigative jurisdiction, the FBI
employee must promptly transmit themformation or refer the complainant to a law
enforcement agency having jurisdiction,. except when disclosure would jeopardize an
ongoinginvestigation, endanger the saf~ty of an individual, disclose the identity of a
human source, interfere with a human source's cooperation, or r~veallegally
privileged information. Iffull-disclosure is not made for any ofthe reasons· indicated,
then,.w~enever feasible, the FBI employee must make:: at least limited disclos'ure t9 a
law enforcement agency or ageJlci~s having jurisdiction, andfuil disc10suremust be
made as Soon as the need for restricting the information is nO'longer present. Where

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disclosure is not made to the appropriate law enforcement agencies within 180 days,
the FBI employee/Field Office must notifY the appropriate substantive Unit at FBI Headquarters in writing concerning the facts and circumstances concerning the
criminal activity. FBI Headquarters is required to make periodic reports to the Deputy
Attorney General on such non-disclosure and incomplete disclosures. (AGG-Darn,
Part VLC.2)
2. (U) Approval . .

(U//FODO) Prior SSA approval is required'for assistance to state, local, or trioal agencies
when the assistance uses investigative methods beyond those authorized, in assessments.
As~istance to other agencies usitlg an investigative method authorized only for predicated
investigations requires supervisory approval at the same level required for the respective
investigative method ifused in an FBI investigation. Specifically, higher supervisory
approval and notification requirements may'exist for conducting ajoint operation, a
'sensitive investigative matter, and using particular investigative methods, as noted in
Sections 10 and 11. and in the Division policy guides. Assistance for investigative
methods beyond those authorized in asse~sments niust be documented in the FD-999.
Approval for use of specific technologies is setforth in Section 12.6, below and the otE>
Manual.

0; (0) Foreign Agencies

The

1. (UI/FOUO) General:
foundation'or'the FBI's international program is the Legat
Each Legat is the Director's,personal representative in the foreign countries in which
he/she resides or has regional responsibilities. The Legat's job is'to respond to the FBI's
domestic and foreign· investigative needs. The Legat can accomplish this because he or
she has' developed partnerships and' fostered cooperation with 'his·or her foreign
counterparts on every level and is familiar with investigative rules, protocols, and
practices that differ from country to country. This is the Legat's primary responsibility.
A;; such, foreign agency requests.for assistance will likely come to the FBI through the
Legat. If, however, foreign agency requests for assistance bypass the Legat, the: FBi
employee mJ,lst notify the Legatand 010, as discussed in greater detail below.
2. (D) Authorities

.a. (U//FOUO) At the request of foreign law enfor~ement, intelligerice, or security
agencies, the FBI may conduct investigations or provide assistance to investigations
by such agencies, consistent with the interests of the United States (including national
security interests) and with due consideration of the effect on any United States
person. (AGG-Dom, Part m.D.I) Th~ FBI must follow applicable MOUs, MOAs;
Mutual L~gal Assistance Treaties (MLAT) and other treaties when it provides
assistance to foreign governments.
I.

.

CUI/FOUOl
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ii.

-

.cUl/FOUO~

-I

b. (UlIFOUO)r

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,
c. (U/IFOUO) The FBI may not provide assistance to foreign law enforcement;
intelligence, or security officers conducting investigations within the United States
unless such officers have provided prior written notification to the Attorney General
of their status as an agent of a foreign government"as required by 18 U.S.C. §951.
(AGG-Dom, Part III.D.2) The lJotific'ation required by 18l].S.C.' § 951 is not
applicable to diplomats, consular officers or, attaches.
d. (UlIFOUO) Upon the request ofa foreign government agency, the FBI may conduct
backgrQund ,inCj\liries cOI'lc~rnilJg i.ndivich.lal§-whose con~en1 is. c!Q~um.eIlte~.(AGQborn, Part in.D.3)
~,
e. (UlIFOUO) The AGG-Dom, Part III.D.4 authorizes the FBI to provide other material
and technical assistance to foreign governments to the extent not otherwise prohibited
by law. AG Order 2954-2008 authorizes the FBI to provide technical assistance to
foreign governments, as referenced below in Section 12.6.
3. (U) Approval .
a. (UI/FOUO) Prior SSA approval is required for all assistance'to foreign agencies. All
assistance must be docuIllented in the FD-999 and that approval should be
documented in the file

b (UlIFOUOJ
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c.' (UlIFOUOJ
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(UIIFOUO]

I

4. (U) Notice
a. (UlIFOUO)f
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b.' (0) The FBI must notify"the DOJ NSD concerning investigation or assistance where
both: (i) FBIHQs approval for the activity is required (e.g., FBIHQ approval required
to use a particular investigative. method); and (ii) the activity 'relates to a threat to the
United States national security. T~e FBIHQ Division ,approving the use of the
investigative-method must notifY DOJ NSD as soon as practicable, but no later than
30 calendar days after FBIHQ approval (see classified appendix f o r i .
.~ (AGG-Dom, Part III.D.l) .
5. (U) Dissemination

I

I

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(UlIFOUO) All dissemination ofFBI infonnation.to foreign agencies must be conducted
according to the FBI Foreign Dissemination Manual; dated May 23, 2008

12.6.

(UlIFOUO) Standards for Provi.ding and .Approving Technical Assistance to Foreign,
State, Local and Tribal Agencies
A. (U) Authority
'1. (UlIFOUO)r
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B. (U) Approval
(UI/FOUO) All technical assistance must be approved by.the Director or his designated
senior executive FBI official,as provided in the OTD manual. Ali technical assistance must
,be documented in an FBI assessment file, predicated investigation me, a domestic poJi~e'
cooperation file, a foreign police cooperation file, or oth~r investigative/technical assistance
<;ontrol,fiIe, Additionally, all.technical assistance must be documented.in the·FD-999 or its
successor.

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13. (D) Extraterr.itori31 Provisions
13.1. (U) Overview
(UlIF0UO) The,F~I may conduct investigations abroad, participate, with foreign officials in
investigations abroad"or otherwise conduct activities outside the United States. The guidelines
for conducting investigative activities outside of the United States are currently contained in: (i)
The Attorney General's Guidelinesfor Extraterritorial FBI Operations and Criminal
Investigations; (ii) The Attorney General's Guidelinesfor FBI National Security Investigations
and Foreign Intelligence Collection; and (iii) The Attorney General Guidelines on the
Development and Operation ofFBI Criminal1nformants and Cooperative Witnesses in
Extraterritorial Jurisdictions (collectively, the E~traterritorial Guidelines). The Attorney
General's Guidelinesfor Extraterritorial FBI Operations are curre~tly being drafted, as
discussed in mOG Section 1, and will supercede, the above listed guidelines, or applicable
provi~ions thereof.
.

z:

13.2. (U) Purpose and Scope
(UlIFOUO) As a general rule, the Extraterritorial Guidelines apply when FBI personnel or
confi~ential hlupan sources are active! . en a edin investi .alive activioutside theborde'rs Of
,tlie'United States. "

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B.

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(UIIFOUO) FBI personnel planning to engage in any of the investigative activities eJescribed in
th~

subsection above must obtain the conclirrence of the appropriate Legat and must comply with
the remaining procedural requirement of the Extraterritorial. Guidelines. For additional
information consult the Extraterritorial Section ofthe Odc website.
13.3. (U) Legal Attl;lche·Program

(U/lFOUO)The foupdation of the FBI's international program f~ the-Legat. Each Legat is the
Director's personal representative in the foreign countries in which htl/she resides or has regional
responsibilities. The Legat's job is to respond to the FBI's domestic and extraterritorial
investigative IJeeds. Legats can accomplish this mission qecause they· have developed
partnerships and fostered cooperation "{ith their foreign counterparts on every level and are
familiar with.local investigative rules, protocols, and practices which differ from country to
country. For additional information consult the FBIHQ 010 website.

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14. (U) Retention and Sharing of Information
14.1. (U) Purpose and SC(We
(UIIFOUO) Every FBI component is responsible for the creation and maintenance of authentic,
reliable, and trustworthy records. Without complete and accessible records,.the FBI cannot
-conciuct investigations, gathe~ and analyze intelligence, assist with the prosecution of criminals,
.
or-perform any of its critical missions effectively.,
(UIIFOUO) The FBI is committed to ensuring that its records managemeht program
accomplishes the following goals:

A. (UlIFOUO) Facilitates the documentation of official decisions, policies, activ'ities, and
transactions;
B. (UIIFOUO) Facilitates the timely retrieval. of needed information;
C. (UIIFOUO) Ensures continuity of FBI business;

D.

(UlIF0UO) Controls the creation and growth of FBI records;

E. (UlIFOUO) Reduces operating costs by managing records
and by disposing of unneeded records in a timely manner;

acco~ding to

FBI business needs

F. (UIIFOUO) Improves efficiency·and productivity through effective records storage and
retrieval methods;

" with applicable laws and regulations;
G. (UIIFOUO) Ensures compliance
H. (UIIFOUO) Safeguards the FBI's mission-critical information;
1.

(UlIFOUO) Preserves the FBI's corporate memory and history; and

. J. (UliFOUO) Implements records management technologies to support all of the goals listed
above.

14.2. (U) The FBI's Recor.ds RetentiQn Plan, and Document;ltion
(UlIFOUO) The FBI must retainxe~ords relliting to inves.tigative activities according to a records
retention plan approved by the NARA. (AGG-Dom, Part V1.A.I)
(UIIFOUO) The FBI's disposition authorities provide speciJic instructions about the length of
time that records must be maintained. In some instances, records may be destroyed'after a
prescribed period of time has elapsed. Other records are neve~ destroyed and are transferred to
NARA a certain numb~r of years after a: case was closed.

. A. (UlIFOUO) The FBI must m~intain a database or records system that permits, with respect to
each predicated inve,st!gation; the prompt retrieval of the status of the investigation (open or
closed), the dates of opening and closing, and the basis for the. investigation. (AGG-Dom,
Part VI.A.2)
.
.
(UIIFOUO) 'The FBI has updated its official File Classifica~ion System to cover records
related to all investigative and intelligence collection'activities, including assessments.
Records are maintained in the FBI's Central Records System or other designated systems of
records, that provide the required maintenance and retrieval func~ionality.

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B. (U/IFOUO) Assessments m!lst also adhere to the standards as set forth in the Records
Management Division Disposition Plan and Retention Plan. All records, including
assessments, may be destroyed or expunged earlier than the destruction schedule through
proper authority.
(U//FOUO) All Bureau records are maintained for their full retention periods, except under
certain circumstances under which they maybe either destroyed earlier or retained.longer.
Reco~ds may be retalned for a longer period than their disposition authority specifjes,.ifthey
are subject to a litigation freeze. Court orders may direct that certain records be eXRunged
from a case file, or (more rarely) that the entire case file be expunged. Underc.ertain
circumstances, individuals may. also request that certain records be expunged. Expungement
of records may mean the physical removal and destruction of some or all of the record or,
depending on the court order and the governingstatute or program, it may mean the removal,
sealing; and secure storage of records away from the remaining file. In most instances, only
certain documents, not the entire file, are subject to expungement.

14.3.

(U) Information Sharing

CUI/FOUO) The FBI 2008 National Information Sharing Strategy (NISS) provide~~he common
vision, goals, and framework needed t6 gtiiOe iilformation-shli'ring. initiatives with our federal,
state, local, and tribal agency partners; foreign government counterparts, and private sector
stakeholders. The FBI NlSS addresses the cultural and technological changes required to move
the FBI to "a responsibility to provide" culture. This will be accomplished by using the best
practices and technology §'tandards of both communities as we support the intelligence and law
enforcement communith;s in collection, dis~eminatiqn, analysis, coUaboration;and operational
efforts.

A.

CV) Permissive Sharing
CU//FODO) Consistent with the Privacy Act and any other applicable laws and memoranda
of understanding or agreement with other·agenciesconcerning the dissemination of
infonnation, the FBI may disseminate information obtained or produced through activities
. under the AGG-Dom:

l. (UI/FOUO) Within the FBI and to all other components of the Department of Justice if
the recipients have need of the infonnation in the perfonnance of their official·duties.
2. (U/IFOUO) To other federal agencies if disclosure is compatible with the purpose for
which the infonnation was collected and it is related to their re~ponsibilities. lp relation
to other USIC agencies, the determination whether the information is related to the
recipient responsibilities may be left to the recipient.
3. (UI/FOUO) To state, local, or Indian tribal agencies directly engaged in the criminal
justice process where access is directly related to a law enforcement function of the
recipient agency.
4. (UlIFOUO) To congressional committees as authorized by the DOl Office of
Legislative Affairs.
5. (U//FOUO) To foreign agencies ifthe FBI detennines that the information is related to
their responsibilities; the dissemination is consistent with the interests of the United

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States (including national security interests); arid where the purpose of the disclosure is
compatible with the purpose for which the information was collected.
6. (U/IFOUO) If the information is publicly available, does not identify United States
persons, or is disseminated with the consent ofthe person whom it concerns.
7. (U/IFODO) I[the disseminatioQ is necessary to protect.the safety or security of persons
or property, to protect against or prevent a crime or ~mminent threat to the national
~ecurlty, or to bbtain information for the conduct,of an authorized FBI investigation.
8..(U/IFOUO) If dissemination' of the information is otherWise permitted by the Privacy
Act (5 U.S.C.§ 552a) (AGG-Dom, Part VIRl)
(U/IFOUO) All FBIinformation sharing activities under this sect~on shall be.acc~rding to
Corporate Policy Directive 120, "FBI Sharing Activities with Other Government Agencies,"
95D "Protecting Privacy in.the Information Sharing Envirqnment," and any amendments
thereto and applicable succeeding policy directiyes.

B. (U) Required Sharing
(VI/FOUO) The FBI must share and disseminate information as required by statutes, treaties,
Executive Orders,.P,resid~nti3.1 9irectives;J\~;itionaI Security CQuncil directives, Hpmeland
Security Counc1J directives, ONI directives, Attorney General-approved pOlicies, and MOUs
or MOAs; as cortsistent with the Privacy Act.

14.4. (D) Information Related to Criminal Matters
A. (U) c'Qordinating with Prosecutors
(UI/FOUO) In aQ investigation relating to possible criminal activity in violation offederal
law, the FBI employee conducting the investigation must maintain periodic writtep. or oral
contact with the appropriate federal prosecutor, ~s circumstances warrant and as requested by
the prosecutor. When, during such an investigatiqn, a matter appears arguably to warrant
prosecution, the FBI employee ,must present the relevant facts to the appropriate feder~l
prosecutor. Informat,ion on investigations that have been closed must be available on request
to a United States Attorney or his or her. designee or an appropriate Department of JJ.1stice
official. (AOG-Dom, Part VI.C)

.B. (U) Criminal Mat~ers O~tside FBI Jurisdiction
(U//FOUO) When credible information is received by an FBI employeeconceming serious
criminal activity not within the FBI's investigative jtJrisdiction; the FBI employee must
promptly transPlit the information or refer the complainant to a·law enforcement agency
having jurisdiction, except where disclosure W9uld jeopardize an oqgoing .investigation,
,endanger the safety Of an individual, disclose the identity of a CHS, interfere with the
cooperation of a CHS, or reveal legally privileged information. If full disclosure is not made
for the reasons indicated, then, whenever feasible, the FBI employee must make at least
limited disclosure to a law enforcement agency or agenci~s having jurisdiction, and full
disclosure must be made as soon as the need for restricting disclosure is no longer present.
Where full disclosure is not made to the appropriate law enforcement agencies within 180
days, the FBI employee/Field Office must promptly notify-FBIHQ in 'writing of the facts and
circumstances concerning the criminal activity. The FBI must make periodic reports.to the

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Deputy Attorney General on such non-disclosures and incomplete disclosures, in a form
suitable to protect the identity of a CHS. (AGG-Dom, Part VI.C)

C. (U) Reporting of Criminal Activity
(UifFOUO) When it appears that an FBI employee has engaged in criminal activity in the
course of an investigation under ~he AGG-Dom, the PBI must notify the USAOor an
appropriate DOl Division. When it.appears that a CHS has engaged in criminal activity in the
course of an investigation under the AGG-Dom, the FBI must.proceed as provided in the
AGG-CHS. When information concerning possible criminal activity by any other person
appears in the course of an investigation under the AGG-Dom, the FBI must initiate an
investigation ofthe criminal activity if warranted. (AGG-Dom, Pari VLC.3)
(UI/FOUO) The reporting requirements under tpis paragraph h::lating to criminal activity by
an FBl employee or a CHS do not apply to otherwise ill~gal activity that is authorized. in
conformity with the AGG-Dom or other Attorney General guidelines or to mihor traffic
offenses. (AGG-Dom, Part Vl.C.3)

14.5. (U) Information Related to National Security and Foreign Intel\igence Matters
(UifFOUO) All informatio!1 sharing with a foreign governmellt relateq to classified national
security and foreign intelligerice must adhere totheFBI-ForeigriDissemiiJati6nManual effective
OS/23/2008 and effective policies governing MOUs.
'
.
(UlIFOUO)The gener'al' principle reflected in current law and policy is that there is a
responsibility to provide jhformationas consistently apd fully as possible to agencies with
relevant responsibilities to protect the United S~ateS'and its people from terrorism-and other
threats to the national security, except as li~ited by specific constraints on such sharing. The
FBI's responsibility in this area includes carrying, out the requirements ofthe MOU Between the
Intelligence Community, Federal Law Enf9rcement Agencies, and the Department of Homeland.
Security Concerning Information ~haring (March 4, 2003), or any successor memorandum. of
understanding or·agreet:nent. Specific requirements also exist for internal.coordination and
consultaliol) with other pOJ c9Inponents, and for sharing national s'ecurity and fore~gn
intelligence information with White Iiouse agencies, as provided in the ~nsuing paragraphs.
(AGG-Dom, Part VI:D)

. (U) Dep~rtrhent of Justice
A. (UIIFOUO) The DOJNSD n:tust have access to all information obtained by the FBI through
act~vities relating to threats to the national security or foreign intelligence. The Director of
the FBI and the Assistant Attorney General for Nat.ional·Security must consult. concerning
these activitie~ whenever requested·by either of them, and.the FBI must provide such reports
and infqrmation cbhcerning these activities as the Assistant Attorney General for National
Security may request. In addition to any reports or·information the Assistant Attorney
General for National Security may specially request under this subparagraph, the'FBI,must
provi~e annual reports to the NSD concerning its foreign intelligence c()lIection program,
including information concerning the scope and nature offoreign intelligence collection
activities in each FBI Field Office. (AGG-Dom, P~rt VI.D. J) B. (U//FOUO) The FBI must keep the NSD apprised of all information obtained through
activities under the AGG-Dom that is nec~ssary to the ability o~ the United .States to
'investigate or protect against threats to the national security, that includes regular

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consultations between t~e FBI and the NSD to exchange advice and information relevant to
addressing such threats through criminal prosecution or other means. (AGO-Dam, Part
Vl.D.l)

C. (U//FOUO) Except for counterintelligence investigations, a relevant USAO must have access
to and must receive information from the FBI relating to t~rcats to the national security, and
may engage in consultations with the FBI relating to such threats, to the same cx,tent as the
NSD. The relevant USAO must receive such access and infonnation frorothe EBI,FieId:
Offices. (AGG-Do~, Part VLD.l)
D. (UIIFODO) In a counterintelligence investigation - e.g., an investigation relating to a matter
described in Part VII.S.2 of the AGG-Dom - the FBI's providing information to and
consultation with a relevant USAO is subject to authorization by the NSD. IJ;1. consl;lltation
with the Executive Office for United States Attorneys and the FBI, the NSD must establish
policies setting forth circumstances in which the FBI will consult with.the NSD prior to
informing a r~levant USAO about such an investigation. The policies established by the NSD
mqst (among other things) provide that:

1. (UI/FOUO) The NSp wjll, within 30 days, authorize the FBI to share with the VSAO
informatio~ relating to certain espionage it!vestigations, as defined by the.policies, unless
such ihformationiswithheld-because of substantial national security considerations; and
2. (UI/FOUO) T,he FBI may consult freely with the USAO concerning investigations within
the scope of this subparagraph during an emergency, so long as the NSD" is notified of
such consultation as soon as practicable after the consultation. ·(AGG-Dom, Part VI.D. I)

E. (UIIFOUO) Information shared with a USAO pursuant to mOG subparagraph 14.5 (National
Security) must be disclosed only to the United States Attorney or any AUSA designated by
the United States Attorney as points of contact to receive such information. The United
States Attorney and designated AUSA must have an appropriate security ciearance and must
receive training in the handling of classified information and information derived from FISA,
including training concerning the secure handling and storage of such information and
training concerning requirements and limitations relating to the use, retention, and
dissemination of such informl).tion. (AGG-Dom, Part VI.D. I)
F. (UIIFOUO) The disclosure and sharing of infonnation by the FBI under this paragraph is
subject to any limitations required in orders issued by the FISC, controls impos~d by the
origina~ors of sensitive material, and restrictions established by the Attorney General or,the
Deputy Attorney General in particular cases. The disclosure arid sharing of information by
the FBl'underthis paragraph that may disclose the identity ofa eHS is governed by the
relevant provisions of the AGG-CBS. (AGG-Dom, Part VI.D.l)

(U) Whit~ House
(U1/FOUO) In order to carry, out their responsibilities, the President, the Vice President, the
Assistant ~o the President for National Security Affalrs~ the Assistant to the President for
Homeland Security Affairs, the National Security Council (NSC) and its staff; the Homeland
Security Council (HSC) and its staff, and other White House officials and offices require
information from all federal agendes, including foreign intelligence, and information relating to
international terrorism and other threats to the national security. The FBI accordingly may

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dissem~natc to the White House foreign intelligence and national security information obtained
through acti.vities under the AGG-Dam, subject to the following standards and procedures.
A. (UIIFOUO) White House must request such information through the NSC staff or HSC staff
including, but not limited to, the NSC Legal and Intelligence Oirectorates and Office of
Combating Terrorism, or through the President's lntelligence Advisory Board or the Counsel
to the President. (AGG.Dom, Part VI.D.2.a)
(Ui/FOUO)Ifthe WhiteHouse sends a request for such infoJinationto the FBI without first
sending the request through the entities described above, the request must be returned to the
White House for resubmission.
B.(U/IFOUO) Compromising information concerning domestic officials or political
organizations, or information concerning.activities of United States persons intended to affect
the political processjn the United States, may be disseminated to the White House only with
the approval of the Attorney General, based on a determination that such dissemination is
needed for foreign intelligence purposes, for the purpo~e of-protecting against international
terrorism or other threats to the national security, or for the_condu~t of foreign affairs.
However, such approval i~ not J~qu.irecl fgr di§~emin.atJQn:tothe WhiteHouse of information
concerning efforts 0'£ foreign intelljgence services to penetrate the White :House, or
concerning contacts by White Bouse personnel with foreign intelligence service personnel.
(AGO-Dom, Part VI.D.2.b)
.
C. (U/IFOUO) Examples of types of information that are suitable for dissemination to the White
House on a routine·basis include, but are not limited to (AGG-Dom, Part VI.D.2.c):
1.. (U//FOUO) Information concerning international terrorism;
2. (UI/FOUO) Information concerning activities offoreign intelligen<?e services in the
United States;

3". (U//FOUO) Infol1l)ation ind'icative of immine.nt hQstilities involving any foreign power;
4. (U//FOUO) Information concerning potential cyber threats to the United States-or its
allies;
.
5. (U/IPOUO) Information indicative ofpoliyy positions adopted by foreign officials, .
governments, or powers, or their reactions to United States foreign policy initiatives;
6. (U//FOUO) Information relating to possible changes in leadership positions offoreign
governments, parties, factions, or powers;
.
7. "(U/IFOUO) Information concerning foreign economic or foreign political matters that
might have national security ramifications; and
8. (U//FaUO) Information set forth in regularly published na,tionaJ intelligence
requirements.
D. (UI/FOUO) Communications by the FBI to the White House that reiate to a national security
matter.and concern a litigatior; issue for a specific pending case must be made known to the
Offige of the Attorney General, the Office .ofthe Deputy Attorney General, or the Office of
the Associate Attorney General. White House policy may limit or prescribe the White House
personnel who may request information concerning such issues from the FBI. (AGG-Dom
Part VI.D.2.d)

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E.· (U1/FODO) The limitations on dis,semination of information by the FBI to the White House
under the AGG-Dom do not apply to dissemination to the White House of information
acquired in the course of an FB.! investigation requested by the White House inLo the
background of a potential employee or appointee, 'or responses to requests from the White
House under E.O. 10450 relating to se~urity requirements for government employment,
(AGG-Doin, Part VI.D.2.e)
. 14.6. (U) Special Sta.tutory Requirements

A. (U) Dissemination of information acquired under the FlSA is, to the extent provicied.in that
Act, subject to minimization procedures and other requirements specified in that Act. (AGODam, Part Vl.D.3.a)
B. (U) Information obtained through the use ofNSLs under 15 U.S.C. § 1681v (NSLs to obtain
full credit reports)'may be diss~minated in conformity with the general standards of AGGDom, Part VI, and maG Section Il.9.3.G. Information,obtained through the use ofNSLs
under other statutes may be,disseminated in conformity with the general standards of the
AGG-Dom, Part VI, subject to any applicable limitations hi. their governing statutory
provisions (see maG .Section 11.9.3.G): 12 U.S.C. § 3414(a)(5)(B); 15 U.S.C. § 1681u(f);
18 U.S.C. § 2709(d); 50 U.S.C. § 436(e). (AGG-Dom, Part VI.D.3'.b)

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15. (D) Intelligence Analysis and Planning
15.1. (D) Overview
. (UI/FOUO) The AGG-Dom provide specific guidance and authorization for intelligence analysis
and planning. This authority enables the FBI to identify and understand trends, causes, and
potential indicia of criminal activity and other threats to the Uqited States that would;not be
. apparent from the investigation of discrete matters alone. By meaQs of intelligence analysis and
planning, the FBI can more effectively discover criminal threats, threats to the national security,
and other matte.rs of nationaL intelligence interest, and can provide the critical support needed for
the effective discharge of its investigative responsibilities and other authorized activities. (AGGDom, Part IV)
(UI/FOUO) In carrying out its intelligence fun.ctions under Part IV of the AGG-Dom, the FBI is
authorized to collect information using aU assessment investigative methods authorized in Part II
of the AGG-Dom as described in the"DlOG Section 5J
.

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Investigative activities under the AGG-Dom and other legally authorized activities through
which the FBI acquires information, data, or intelligence may properly ·be utilized, structured,
and prioritized to support and effectuate the FBI's intelligence mission. (AGG-Dom, Part
II.A.3.d and Part IV, Intra.)
(U//FOUO) Note: In the DlOG,'the word "assessment" has two distinct meanings. The AGGDom authorizes as an investigative activity an "assessment," which requires an aut40rized
purpose as discussed in Section 5. The USIC, however, also uses the word "assessment" to
describe written intelligence products, as discussed in Section IS.7.B.

15.2. (U) Purpose and Scope
A. (U//FOQO) Functions Authorized: The AGG-Dom authorizes the FBI to engage in
intelligence analysis and planning to facilitate and support investigative activities and other
authorized activities. The functions authorlzed;include:
1. (U//FOUO) Deve.1opment of overviews and analyses concerning threats to and
vulnerabilities of the United States and its interests, such as domain management as
related to the FBI's responsibilities;
2. (U//FOUO) Research and analysis to produce repo~s and assessments (analytical
products) concerning matters derived from or relevant to investigative activities or other
authorized FBI activities; and
3..(U//FOUO) The operation ofintelligerice and information systems that facilitate and
support investigations and analysis through the compilation and analysis of data and
information on an ongoing basis. (AGG-Dom; Introduction B)
B. (UI1F9UO) Integration ofIntelligence Activities: In order to protect against national
security ahd criminal threats through intelligence-driven operations, the FBI should integrate
intelligence activities into all investigative efforts by:

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1. (U/IFOUO) Systetnatically assessing p;¢icular geographic areas or sectors to identify
potcntial threats, vulnerabilities, gaps, and collection opportunities in response to FBI
collection requirements that support the broad range of FBI responsibilities;
2. (UI/FOUO) Pro-actively directing resources to collect against potential threats and other
-matters of interest to the nation and the FBI, and developing new collection capabilities
where needed;

3. (UIIFOUO) Continuously validating collection capabilities to ensure information
integrity;·
4. (UI/FOUO) Deliberately gathering Information in response to articulated prior.ity
intelligence requirements using all avaiiable collection resources, then expeditiously
preparing the collected inforrriation-for arialysis and dissemination and prorrtptly
disseminating it to "appropriate partners at the local, state, .national and foreign level; and

5. (UIIFOUO) Purposefully evaluating the Implications. of collected information on current
and emerging threat isslles.
C. (U/IFOU'O) Analysis and Planning 'not Requiring the Initiation of an AGG-Dom Part II
Assessment, (~ee DIOG Section 5):1

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As. part of-such analysis, an F~I employee can analyze historical informatio,n already
contained within: ei) FBI data systems; (ii) USIC systems to which the FBI employee has
. .
.
.
(iii) any other United States'Government data
access (e.g.,I- .
system to' which the FBI employee has access~ and (iv) the FBI' employee can also conduct
open-source Internet searches. Open-source Internet searches do not include anv oaid-for~
service databases such as Lexis-Nexis and Choiceoointl

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t

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15.3. (U) Civil Liberties and Privacy
(U) The'PBI mllst collect intelligence critical-to the FBI's apility to carry out its intelligence ana
law enforcement mission. WHile conducting intelligence analysis and planning, the FBI will
conductits activities in compliance with the Constitution, federal laws, the..AGG-Dom and other·
relevant authorities in order to protect civil,liberties and privacy.

15.4. (U) Legal Authority

(U) The FBI is an intelligence agency as well as a law enforcementagency. Accordingly, its
basi9functions extend,beyond limited investigations of discrete matters, and include broader
analytic an~ planning functions. The FBI's respon~ibilities in this area d€:rive from various
administrative and statutory sources. See, e.g., E.O. 12333 § 1,7(g);' 28·U.S.C. §§ 532 note
(incorporating P.L. 108-458 §§ 2001-2003) and·534 note (incorporating P.L. I09-!62 § 1107).
(U/IFOUO) Th~ scope of authorized activities unaer Part II bfthe AGG-Domis not limited to
"investigation" in a narrow sense, such as solving particular cases or obtaining evidence for use

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...;..

in particular criminal prose~1.!tions. Ratner, the investig~tive activities authorized under the
AGO-Dom may be properly used to provide crilical information needed for broader analytic and
intelligence purposes to facilitate the solution and prevention of crim~, protect the national
security, and further foreign intelligence obje~tives. These purposes include use of the
information in intelligence analysis and p{anning under AGG-Dom. Part IV, and dissemination
of the information to other law enforcement,USIC, and White House agencies under AGG-Dom,
Part VI. Accordingly, inforr'nation obtained at all stages of investigative activity is to-be retained
-and disseminated, for these purposes as provided, in the AGG-Dom, or in FBI policy consistent
with the AGO-Dam, regardless of whether it furthers investigative objectives in a narrower or
. more immediate sense. (AGG-Dom, Part II)
1;;.5. (U//FOUO) Standards for

Ini~iating or

Approving Intelligence Analysis an,d '

Plannin~

(U/IFOUO) If an FBI employee wishes to engage in Intelligence Analysis and Planning tliat
requires the collection 9r examination of informati~m not available: (i) through an open-source
Internet s~arch; (ii) in the FBI's existing files; (iii) in the USIC data systems to which the FBI
employee has access; or (iv) in any 9ther United States Govemm~nt data system to which the
FBI employee has acces; an assessment must be initiate.d. An FBI employee or. approving official.
must de~erfninetnat:
A. (UI/FOtIO) An authorize~ purpose and object,ive exists for'the conduct of an assessment (e.g.,
information is needed in order to conduct appropriate intelligence analysis arid planning);

B. (U//FOUO) The assessment is based on factors other'than the exercise of First Amendment
activitIes or on the race, ethnicity, national origin or religion of the subject; and
C. (UI/FOVO) The assessment is an appropriate use of personnel and 'financial resourCl:;s.
15.6.

(U/IF<;>UO) Standards for Initiating or Approving the Use of an Authorized

Investigative Method in Intelligence Analysis and Planning.

\

A. (U/IFOUO),The use of the particular investigative method is likely to further an objective of
the assessment;
B. (U//FOUO) The investigative methodselecteQ. is the least intruSive method, reasonable und~r
the Circumstances;
C. (U//FOUO) If the assessment relates to positive foreign intelligence, the FBI must operate
openly and consensually with United States persons, to the extent practic,able.

D; (U/LFOUO) The anticipated value of the assessment justifies the use of the selected
investigative method or methods; and
E. (U//FOUO) The investigative methqd is an appropriate use ofpersonnel and financial
resources.
15.7•.(U) Authorized.Activities in Intelligence Analysis and Planning
,(U) The FBI may engage in intelligence analysis and planning to facilitate or support
investigative activities authorized by the AGG-Dom or other legally authorized activities.
Activities the FBI may carry·outas part ofIntelligence Analysis and Planning include:

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A. (U1IFOUO) Strategic Intelligence Analysis

(u/iFoUO) The FBI is authorized to develop overviews and analyses ofthreats to and
vulnerabilities ofthe United States and its interests in areas related to the FBI's
responsibilities, including domestic and international criminal threats and activities; domestic
,and international activities, circumstances, and developments affecting the national security.
FBI overviews and analyses may encompass present, emergent, and potentia,l threats and
vulnerabilities"their contexts anc~ causes, and identification and analysis 'of means of
responding to them. (AGO-Dam, Part IV)
I. (U//fOUO) Domain Management by Field Offices
(UIIFOUO) As part of Strategic Analysis Planning activities, the FBI !Uay coUect
information in order to.improve or facilitate "domain awareness" and may engage 'in
"domain management." "Domain management" is the systematic process by which the
FBI develops cross-programmatic domain awareness and leverages its knpwledge t6
enhance its abil.ity to: (i) proactively identify threats, vulnerabilities, and intelligence gaps;
(ii) discover,new opportunities.for needed intelligence collection and prosecution; and (iii)
set tripwires to provide agvance warning o(national security and criminal threats.
Effective domairimimagement enables the FBI to ioentiry significant threats,. detect
vulnerabilities within its local and national domain, identify new sources and threat
indicatprs, and recognize new trends so that resources can be appropriately allocated at
the local level in accordance With national priorities.

(UI/FOUO) Through a properly authorized assessment, domain management is
. undertaken at the local and national ievels. All National Domain Assessments are
initiated.and coordinated by the DI. Examples of dohiain management 'activities include,
but are not limited to: J .
.
census crime statisti~s,
'cas~ information, domain entities, trend analysis, source development, and placement of
tripwires. Further guidance regarding domain management and examples of intelligence
.,
products are contained in thel

I

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J

(UI/FOUO) The Field Office "domain" is the territory and issues for which a Field Office
exercises responsibility, also known as the Field Office's area-of-responsibifity (AOR).
Domain a\yareness is the: (D strategic ulJderstanding of national security and criminal
threats. and vulnerabilities; (ii) FBI's positioning tocoll~ct against these threats' and
vulnerabilities; and (iii) the existence of intelligence gaps related to the domain.
(O//Foum All information collected for domain manaQ'ement must be documented in an
las .directed in thef

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t Additionallv. at any time tha~

.

.

I a separate SUl?stantlve classification assessment file or

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subtile, according to the investigative matter, must be opened on the individual.

..
.Iregarding, but
FBIHQ DI provides specific guidance in its\
not limited to: the initiation, opening, coordination and purpose for Field Office and
National Domain Assessments.

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Domestic InVeStigations and Operations Guide
2. (UlIFOUO) Collection Management
(U//FOUO) Collection Management is a formal business process through which

Intelligence InformatiOn Needs and Intelligence Gaps (e.g., unknowns) are expressed as
Intelligence Collection Requirements (questions or statements requesting information)
and prioritized in a comprehensive, dynamic Intelligence Collection Plan. Results are
m9nitored, and collectors are ~e-tasked as required.
B. (U) Written IJi~elligence Products

(UlIFOUO) the FBI is authorized to condl,lct research, analyze iriformation, and prepare
reports and'intelligence assessments (analytical products) concerning matters relevant to
authorized FBI ac.tivities, such·as: (i) reports and intelligence assessments (analytical product)
concerning types of criminals or criminal activities; (ii) organized crime groups, terrorism,
espionage, or other threats to the national security; (ili) foreign intelligen~e matters; or (iv)
the scope and nature of criminal activity. in particular geographic are;ts or sectors of the
economy. (AGG-Dom, Part IV)
(UI/FOUO) United StateS Person Infonnation.: Reports,.Intelligence Assessments, and
other FJ31 intelJigence.products should not containUliited.Statespersoilinformation
Including the names.of United States c9rporations, if the pertinent intelligence can be
conv~yed without including identifying inform~tion.
(U//FOUO) FBI intelligence products, both· raw and finished, serve a wide range of·
.audiences from national-level policy and decision-makers, inteHigence agencies, and state,
local and triball~w. enforcement agencies.
.
(VI/FOUO) Intelligence products prepared pursuant to this Section include, but are not
. limited to: Domain Management, Special Events Management Threat Assessments,
Intelligence Assessments, Intelligence Bulletins, Intelligence Information Reports~ WMD
Scientific and Technical Assessments, and Regional Filild Office As~essments.

C. (U) Intelligence Systems

(UlIFODO) The FBI is l!uthorized to operate intelligence, identification, tracking, and
information systems in support of authorized investigative activities, or for such other or
additional purposes as may be legally authorized, such as intelligence and tracking systems
relating to terrorists,.gangs, or organized crime g~oups. (AGG-Dom Part IV)
(UIIFOUOl

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(UI/FOUO) When developing a new database, the FBI OGC Privacy and Civil Liberties Uriit
must be consulted to determine if a Privacy Impact Asses~ment (PIA) must be prepared.
D. ~l
I.
. (UIIFOUOj

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(UlIFOuo)1

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Domestic Investigations and Operations Guide

16. (U) Undisclosed Participation (UDP)
16.1. (D) Overview
CU/IPOUO) Undisclosed participation (UDP) takes place when anyone acting on behalf ofthe
FBI, including but not limited to an,FBI employee or confidential human source (CHS), becomes
a member or participates in the activity of an organization on behalf of the U.S. Government
without disclosing FBI affiliation to an appropriate official of the organization.
A. (U) Authorities. The FBI derives its authority to engage in UDP in organizations as part. of
its investigative and intelligence collection missions from two primary sources.

(U) First, Executive Order (E.O.) 12333 br9ad1y establishes policy for the United' St~tes
Intelligence Community (USIC). Executive Order 12333 requires the adoption of procedures
for undisclosed participation in organizations on behalf of elements of the USIC within the
United States. Specifically, the Order provides ".•. [n]o one acting on behalf ofthe
Intelligence Community may join or otherwise participate in any organi~ation in the United
States on 'behalf of the, any element of the Intelligence Community without first disclosing
such,person's intelligence affiliation to appropriate officials of the organization, except in
accordance with'procedure's establish-ed by the'headofthe-IntelligenceCommunity element
concerned ' ... Sucn particip~tion shall be authorized only iiit is essentia.1 to achieving lawful
purposes as determined by the Intelligence Community element head,or designee." (B.O.
12333, Section 2.9, Up.disclosed Participationin Organizati.ons Within the United States).
The Order also provides, at Section 2.2, that "[n]othing in [E.O. 12333] shlill be construed to
apply to or interfere with any authorized civil or'criminallaw enforcement resp<msibility of
any department or agencr."
(U) 'Second, in addition to 'its role as member of the USIC, the FBI is also the primary
criminal investigative agency of the federal government with authority and responsibility toinvestigate all violations of federal law that are not exclusively assigned to another federal
agency. This includes the investigation ofcri111es involving interriational terrorism and
espionage: As a criminal investigative agency, the FBI has the authority to engage in UDP as
part of a predicated investigation or an assessment.
(U/rFOUO) The FBI's UDP policy is designed to incorporate the. FBI's responsibilities as
both a member of the USIC and as the primary criminal investigative agency of the federal
government and, therefore, applies to alUnvestigative .and information collection activities of
the FBI. It is intended to provide uniformity and clarity so that FBI employ~es have one set
of standards to govern all UDP; As is the case throughout the DIOG, however, somewhat
different constraints exist ifthe purpose of the activity is the collection of positive foreign
intelligence that falls outside the FBI's law enforcement authority. Those constraints are
reflected where applicable below.
.B. (U/IFOUO) Mitil!ation of Ri~k.lr-----";""-~--------_---:'_-"""'~---'
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17. (U) Otherwise lliegal Activity.
17.1. (D) Overview
(U/IFOUO) Otherwise Illegal Activity (OlA) is conduct in the course of duties by an·FBI
employee (to. include a UCE) or CHS which constitutes a crime und~r local, state, or federal law
if engaged.in by a person acting without authorization. Under limited circumstances,.OIA can be
authorized for an FBI employee or CHS to. obtain information or eviden<;:e necessary for the .
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success of an investigation under the following circumstances: (i) when that information or
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.evidence is not reasonabl available without participation in. the OIA;

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(iii)

when necessary to prevent serious' bodily injury or death. Certain typesofOIA are not aut orjzed
such as participation in an act of violence, except in self-defense, or participation in conduct that
.
would constItute an unlawful investigative technique such an illegal wiretap.

p.2.

(U) Purpose and Scope

(U/IFOUQ}The.use afOIA.may be ~pproved in the course of undercover activities or ope.rations
that involve an FBI employee or ,that involve 'use of ll. CHS. "When approved, 'OIAshould be .
limited or minimized in scope to only th.at which is reasonably necessary und~r the
circumstances 'ill.cludlng the duration anp geographic area to which approval applies, if
appropriate.
17.3.. CU//FOUO) OIA in Undercover Activity
A. (UI/FOUO) General. The ilse ofthe undercover method IS discussed in the mOG Section
.11.8. OIA is often proposed as part of an .undercoyer scenario or in making the il1itial .
undercove.r contacts before the operation is approved. Specific approval for OlA must be
obtained in the context of these undercover activities or operations in addition to general
approval ofthe s.cenario qrthe operation.
B. (U/IFOUO) O~ by an FBI empl9yee in·anundercover operation relating to activity in
vioiation of federal criminal law that does not concern a threat to the national security
or foreign ,intelligence: must be appr9ved in conformity with the AGG-UCO. Appr9val of
O~A in conformity with the AGG-UCO is sufficie.nt and satisfies any approval requirement
that would otherwise apply ~nder the AGG-Doril. Additional discussion is provided in the'
Field Guide for FBI Undercover and Sensitive Operations. An SAC may approve !he OIA
'
describe.d in' subsection 17.5.
,I. (UlIFOUO) When a·UCE provides goods and service (reasonably unavailable to the
subject except as provided by the United States government) that facilitate a felony, or its
equiyalent under federal, state, or I()cal law, it is a sensitive circumstance. In these
sensitive circumstances, additioriai authoriz~tion 'by an Assistant Director is required after
review by the Criminal Undercover Operations Review Committee (CUORC).
2. (U//FOUO) Participation in otherwise illegal activity that involves a significant risk of
yiolence or physical injury requires authorizati<m by the Director, Deputy Director, or
designated Execiltive Assistant Director after review'by'the eUORC.
C. (U/IFQUO) OIA by an FBI employe~ in an undercover opera~ion relating to a threat to
the national security or foreign intelligence collection must conform to the AGG-Dom~

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The DOJ NSD is the approying component for OIA that requires approval beyond that
authorized for SAC approval described in mOG subsection 17.5, below. However, as
authorized by the Assistant Attorney General for NSD, officials in other DOJ components
may approvepIA in such investigations.
17.4. (U/IFOUO) OIA for a Confidential Human Source
(UIIFOUO) OIA by a CHS must be approved in conformity with the AGG-CHS and the FBI'
CHSPM..

17.5. (UlIFOUO) Approval of0!A by a Special Agent in Charge
(U/IFOUO) An SAC may authorize the following OIA for an fBI employee when consistent
with other requirements of this section, the AGG-UCO, and other FBI· policy: ,

A. (UIIFOUO) Otherwise illegal activity that would not b~ a felony under federal, state, 10cal, or
tribal law;
•
B. (UIIFOUO) Consensual monitoring of communications, even if a crime under state, local, or
tIiballaw;
.
CUIIFOUO) Note: Other approvals for the consensual monitoring may apply sucliasthat .
required when the consensual monitoring involves a sensitiv~ monitoring circumstance. See
mOG Section I 1.5.4.
(UIIFOUO) Note: For those. state, local and tribal governments that do not sanction or
provide a law enforcement exception available to the FBI for (:me-party consent recording of
communications with persons within their jurisdiction, the SAC must approve the consensuai
monitoring of communications as an OIA. Prior to the SAC authorizing the QIA, one-party
consent must be acq~ired. The SAC may delegate the OIA approval ~uthority to an ASAC or
SSA.

C. (UIIFOUO) The controlled purchase, receipt, delivery, or sale of drugs, stolen property, or
other contraband;
D. (UIIFOVO) The payment of bribes;
(UIIFOUO) Note: the payment of bribes and the amount of such bribes in a public corruption
matter may be limited by other FBI policy; see the CID PG.

E. (UIIPOUO) The making'offalse representations in concealment of personal identity or the
true ownership of a proprietary; and
F. (UIIFOUO) Conducting a money laundering transaction Qr transactions involving an
aggre~ate amount not exceeding $1 million.
(UIIFOUO) Exception: An SAC may not-authorize a!1 activity that may constitute material
support to terrqrisni, a violation of export control laws, or a violation of laws that·concerri.
proliferation of weapons of mass destruction. In such an investigation, an SAC may authorize an
activity that may.otherwise violate prohibitions of m~terial support to terrorism only according to
standards established by the Director of the FBI and agreed to by the Assistant Attorney General
for National Security. (AGG-Dom, Part V.C.3)

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17.6. (U/IFOUO) Standards for Review and Approval of OIA
.(UIIFOUO) No official may recommend ~r approve participation by an FBI employee in OIA
unless the participation is justified:

A. (U/IFOUO) To obtain information or evidence necessary for the success of the investigation
and not reasonably avai1ab~e without participation in the otherwise illegal activity; .
B. :(UIIFOU 0)

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C. (UIIFOUO) To prevent de~th or serious bodily injury.
17.7. (U/IFOUO) OIA not authorized
(UIIFOUO) The following activiti~s may not be authorized for an FBI empioyee:

A. (UI/FOUO) Directing or participating'in acts of"iolence;
(Ul/FOUO) Note: Self-defense and defense of others. FBI employees are authorized to'
engage in any lawful'useor force,. including the use of force in self-defense or defense of
others in the lawful discharge oftheir duties.
.

B: (UI/FOUO) Activities·whoseauthorization·is prohibited.by law, i!}cl!1ding unla,wful
investigative methods, such as illegal, non-consensual, electronic surveillance or illegal
searches.
(UIIFOUO) Note: Subparagraph B includes activities that would violat~ protected
constitutional or federal statutory rights in the. abs~nce of a court order or warrant such as
illegal wiretaps and searches~
17.8. (U/IFOUO) Emergency Situations
(UIIFOUO) Without prior approval, an FBI employee may engage in OIA that could be
authorized under this section only if necessary to meet an immediate threat to the safety of
persons or property Qr to t!:le national security, or to prevent the compromise of an investigation
or the loss of!l significant investigative opportunity. In such a case, prior to engaging in the OIA,
every effort should be made by the'FBI employee to consult with the SAC, and by the SAC to
consult with the USAO or appropriate DOJ Division where the authorization of that offi«e or
Division would be required unless the circumstances pr~clude such consultation. Cases in which
OIA occur pursuant to this paragraph without the authorization required must be reported as soon
as possible to the SAC, and by the SAC to FBIHQ and to the USAO or appropriate DOJ
Division.

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