IV.

Investigative Techniques

  1. When conducting investigations under these guidelines, the FBI may use any lawful investigative technique. The choice of investigative techniques is a matter of judgment, which should take account of: (i) the objectives of the investigation and available investigative resources, (ii) the intrusiveness of a technique, considering such factors as the effect on the privacy of individuals and potential damage to reputation, (iii) the seriousness of the crime, and (iv) the strength of the information indicating its existence or future commission. Where the conduct of an investigation presents a choice between the use of more or less intrusive methods, the FBI should consider whether the information could be obtained in a timely and effective way by the less intrusive means. The FBI should not hesitate to use any lawful techniques consistent with these Guidelines in an investigation, even if intrusive, where the intrusiveness is warranted in light of the seriousness of the crime or the strength of the information indicating its existence or future commission. This point is to be particularly observed in investigations relating to terrorist activities.
  2. All requirements for use of a technique set by statute, Department regulations and policies, or Attorney General Guidelines must be complied with. The investigative techniques listed below are subject to the noted restrictions:

    1. Confidential informants must be used in compliance with the Attorney General's Guidelines Regarding the Use of Confidential Informants;
    2. Undercover activities and operations must be conducted in compliance with the Attorney General's Guidelines on FBI Undercover Operations;
    3. In situations involving undisclosed participation in the activities of an organization by an undercover employee or cooperating private individual, any potential constitutional concerns relating to activities of the organization protected by the First Amendment must be addressed through full compliance with all applicable provisions of the Attorney General's Guidelines on FBI Undercover Operations and the Attorney General's Guidelines Regarding the Use of Confidential Informants;
    4. Nonconsensual electronic surveillance must be conducted pursuant to the warrant procedures and requirements of chapter 119 of title 18, United States Code (18 U.S.C. 2510-2522);
    5. Pen registers and trap and trace devices must be installed and used pursuant to the procedures and requirements of chapter 206 of title 18, United States Code (18 U.S.C. 3121-3127);
    6. Access to stored wire and electronic communications and transactional records must be obtained pursuant to the procedures and requirements of chapter 121 of title 18, United States Code (18 U.S.C. 2701-2712);
    7. Consensual electronic monitoring must be authorized pursuant to Department policy. For consensual monitoring of conversations other than telephone conversations, advance authorization must be obtained in accordance with established guidelines. This applies both to devices carried by the cooperating participant and to devices installed on premises under the control of the participant. See U.S. Attorneys' Manual 9-7.301 and 9-7.302. For consensual monitoring of telephone conversations, advance authorization must be obtained from the SAC or Assistant Special Agent in Charge and the appropriate U.S. Attorney, Assistant Attorney General, or Deputy Assistant Attorney General, except in exigent circumstances. An Assistant Attorney General or Deputy Assistant Attorney General who provides such authorization shall notify the appropriate U.S. Attorney;
    8. Searches and seizures must be conducted under the authority of a valid warrant unless the search or seizure comes within a judicially recognized exception to the warrant requirement. See also Attorney General's Guidelines on Methods of Obtaining Documentary Materials Held by Third Parties, 28 CFR Part 59;
    9. Classified investigative technologies must be used in compliance with the Procedures for the Use of Classified Investigative Technologies in Criminal Cases; and
    10. Whenever an individual is known to be represented by counsel in a particular matter, the FBI shall follow applicable law and Department procedure concerning contact with represented individuals in the absence of prior notice to their counsel. The SAC or his designee and the United States Attorney shall consult periodically on applicable law and Department procedure. Where issues arise concerning the consistency of contacts with represented persons with applicable attorney conduct rules, the United States Attorney should consult with the Professional Responsibility Advisory Office.