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  • More generally, “when First Amendment rights are at stake, the choice and use of investigative methods should be focused in a manner that minimizes potential infringement of those rights.”[1]
  • “If … the threat is remote, the individual’s involvement is speculative, and the probability of obtaining probative information is low, intrusive methods may not be justified, and, in fact, they may do more harm than good.”[2]

The DIOG says that the FBI will “[a]pply best judgment to the circumstances at hand to select the most appropriate investigative means to achieve the investigative goal.”[3] At the same time, it “shall not hesitate to use any lawful method … even if intrusive, where the degree of intrusiveness is warranted in light of the seriousness of a criminal or national security threat.”[4] The factors that may support the use of more intrusive collection techniques include operational security.[5]

2. Levels of investigation

One significant way that the AGG-Dom and the DIOG implement the least intrusive means requirement is by describing four different levels of activity. The first is activity that the FBI may conduct without any formal opening or authorization process and is referred to as “activities authorized prior to opening an assessment.”[6] The other, more formalized levels of activity are assessment, preliminary investigation, and full investigation. As the level increases, the FBI may use a broader range of techniques:

a. Activity authorized before opening an assessment

The DIOG states that “[w]hen initially processing a complaint, observation, or information,” an FBI employee may take limited steps to evaluate the information. These include looking at government records and at commercially and publicly available information. The employee may also “[c]onduct a voluntary clarifying interview of the complainant or the person who initially furnished the information … for the sole purpose of eliminating confusion in the original allegation or information provided.” The DIOG explains that “[t]hese activities may allow the FBI employee to resolve a matter without the need to conduct new investigative activity.”[7] New investigative activity requires the opening of an assessment or predicated investigation.[8]

  1. ↑ Id. § 4.4.4.
  2. ↑ Id.
  3. ↑ Id. § 4.1.1(F) (bolding omitted).
  4. ↑ AGG-Dom § I.C.2.a.
  5. ↑ DIOG § 4.4.4.
  6. ↑ See id. § 5.1.
  7. ↑ DIOG § 5.1.1.
  8. ↑ Id.

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