As was previously reported in the New York Times, the FBI’s new edition of its Domestic Investigations and Operations Guide will give agents more latitude to scrutinize the lives of people who attract their attention. As we discussed in the last post, the new rules give FBI agents a greater degree of latitude with respect to assessment and pre-assessment investigations. In essence, the rules allow the FBI to more extensively intrude into people’s lives, even before they have a firm reason to suspect any wrongdoing. Moreover, the new rules even subject innocent people who are merely suspected of having pertinent information to more intrusive investigative techniques.

One such rule targets people who may be potential sources of information by allowing broader use of lie-detector tests. Before, agents were only allowed to use lie-detector tests when they opened a “preliminary investigation” against someone, requiring a factual basis of suspected wrongdoing. Now, agents can use this tactic in their initial evaluation of a target who may be a mere informant with regards to someone the FBI has yet to suspect of any wrongdoing. The use of such early level lie-detector tests can easily be abused by agents who want to either corner, impeach or blackmail someone into cooperating. This level of coercion can potentially be used against anyone who has ever wanted to keep something in their life private. Thus, allowing the FBI to subject a person who is not even suspected of wrongdoing to such scrutiny should be everyone’s concern. At one point we may have been able to say that innocent people need not care how criminals are treated because innocent people do not commit crimes. The new FBI manual changes that game because now innocent people can have their private lives scrutinized by a federally monitored lie-detector test, all in the supposed name of investigating someone else.

Another new rule, the ability to look through a potenial informant’s household trash, similarly enables federal agents to pressure and coerce people into cooperating with a federal investigation. According to the Times, agents specifically asked for this power “to put pressure on [a] person to assist the government in the investigation of others.”

Interestingly enough, the only new limitation on the recently enumerated powers relates to “sensitive investigations.” An investigation qualifies as sensitive when it involves public officials, members of the news media or academic scholars. This includes prominent bloggers and academic scholars at U.S. institutions. Only investigations involving these individuals require greater oversight from supervisors. Apparently intrusions into the lives of average people don’t warrant the same oversight as people already in the public spotlight.

These new rules are of great concern to criminal defense attorneys who commonly represent those subject to federal investigations. Since the advent of assessment level investigations in 2008, the FBI has set a very low bar for itself when examining a person or group. Since 2008 the FBI has opened thousands of such low-level investigations each month and a vast majority of them never justified opening more intensive investigations. The new rules now allow the FBI to make these often unjustified low-level investigations signficantly more invasive than ever.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or

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