religious groups with the express purpose of creating a chilling effect on unpopular
or anti-government expression.175 To engage in activities likely to have such an
effect,
the Bureau should have to show that such an infringement is
justified by a particular level of suspicion
.
Even the power to gather extensive information from public sources can contribute
to the threat of First Amendment chill. The FBI can compile publicly available
information on religious or political figures, government critics, or members of the
media. If it does so based on a distrust of groups or individuals that represent
dissenting perspectives, that is just as problematic from a privacy and constitutional
standpoint as if those same motivations led to information gathering from non-
public sources. Collection and use of information on people’s First-Amendment-
protected activities, even where those activities are carried out in the public eye, is
simply not appropriate absent a legitimate law enforcement justification. The
Guidelines need to exhibit sufficient solicitude for constitutionally protected activity.
3. Dangers of Profiling
Permitting investigations without factual predicate
and with limited
supervisory involvement is overwhelmingly likely to lead to profiling
176 on the basis
of race, religion, ethnicity, national origin, or political belief
.
In the absence of
constraints imposed by a standard such as reasonable suspicion
or probable
cause,
FBI agents are now free, in many situations, to rely on their own
discretion
. As we have seen time and again, individuals permitted such discretion
in making law enforcement decisions are influenced by their conscious or
subconscious biases.177 And this reliance on bias can lead to profiling. Historically,
when law enforcement officials have been able to collect intelligence on groups and
individuals suspected—without any objective basis—of harboring ill will toward the
U.S., the burden of that investigative activity has fallen on groups that espouse
disfavored ideologies, minorities, or others who are perceived as threatening.
178
Justice Department officials have assured both Congress and the public that
“department rules . . . forbid predicating an investigation simply based on
somebody’s race”
179 or “solely for the purpose of monitoring activities protected
by the First Amendment.”
180 The question is not, however, whether investigative
activity will be motivated by race, religion, national origin, or political belief alone.
Problematic profiling consists not only of relying entirely on characteristics like race
or religion, but of taking them into account, in the absence of any particularized
suspicion indicating that such characteristics are relevant, and
making law
enforcement decisions based even in part on such factors
.
Reliance on that
criteria—that an officer has engaged in racial profiling only when the single factor,
i.e., race, religion, ethnicity, etc., is used to make a law enforcement decision—
comes close to defining the problem of out existence. It would not prohibit many
