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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 constitutionalstandpoint 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 predicateand with limited supervisory involvement is overwhelmingly likely to lead to profiling176 on the basisof race, religion, ethnicity, national origin, or political belief. In the absence of constraints imposed by a standard such as reasonable suspicionor probablecause, 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.178Justice 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