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Obama's Pick for FBI Director Says the FBI Is an Intelligence Agency

Why that's bad news for privacy rights.
President Obama speaks with James Comey, left, and FBI Director Robert Mueller. Via the White House

James Comey, President Obama's pick to replace outgoing FBI Director Robert Mueller, has been lauded for fighting President Bush over privacy. Today, in a hearing before Congress, Comey also said that he believes waterboarding is both torture and illegal, which helps clear up his lack of opposition to the practice while he was at Justice Department during the Bush years.

But it's something else he said today that sticks out, especially in the current political climate: Comey pledged to "continue transformation of the FBI into an intelligence agency." That transition of the FBI from a crime-fighting entity to an intelligence-gathering counterterror agency is recent, and remains one of the most significant mission changes of any government agency during the War on Terror. It's also a major driving force behind the collapse of privacy for American citizens.

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Mueller, whose 12 year reign is the longest since J. Edgar Hoover's, has generally received positive reviews for his work as head of the FBI. He appointed by President Bush shortly before 9/11, an event that shaped both his directorship and the future of the FBI. By creating new FBI departments dedicated to counterterror and intelligence gathering—including the National Security Branch and Directorate of Intelligence—as well as dedicating hundreds of agents to intelligence and analysis, Mueller began the change of the FBI from a domestic crime agency into a domestic version of the CIA.

As David Gomez explained in an excellent Foreign Policy piece, while that shift has been lauded on Capitol Hill, the FBI is internally split over the value of its shift in focus. It's a pretty classic old time crimefighters versus young data analysts story, but it's also incredibly significant. The FBI's doubling down on developing intelligence rather than traditional casework has turned the agency into yet another glutton for communications data to sift through.

The FBI's regular whinging about its "going dark" problem is rooted in its counterterror mission. Its regular attacking of privacy rights—including the bureau's argument that the Electronic Communications Privacy Act (ECPA) doesn't give Americans an expectation of privacy with regards to electronic communications—are dictated by its mission to track down terrorists by gathering electronic intelligence, not by its diminished mission to fight federal crime.

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Director Mueller's historic mission shift was fully predicated on the idea that if the FBI was to find a needle, it'd need to build a haystack first.

Which takes us back to Comey. To his credit, Comey said today that ECPA's convoluted rules, including the rule that unopened emails more than 180 days old don't require a warrant to access, are outdated. ”I don’t think the Fourth Amendment has, like your yogurt, an ‘expired on’ date on it,” he said. “It sounds like an anachronism to me."

That's a positive sign, especially given Congress' sloth in updating ECPA. It's also far from a groundbreaking statement, as ECPA's outdated nature has been commented on plenty of times in political circles, to little effect so far.

Comey's support for the FBI's intelligence-gathering mission is more significant, as it's indicative of the obsession with information gathering that's become institutionalized across the government. As sophisticated as it is, the FBI at its core has been tasked with policing federal laws. And while its own shift is mirrored by increasingly militarized and terror-obsessed police agencies nationwide, the FBI's change is notable because it's gone from investigating crimes to trying to find them before they happen.

At its core, that mentality is fueling all of the privacy erosion nationwide, from the NSA's PRISM scandal to the DoJ spying on Associated Press reporters. The shift from police work to intelligence gathering is predicated on the idea that if authorities have enough access to communications, enough data, enough analysis, they can stop crimes before they happen.

That's obviously the goal of counterterror efforts, and intelligence is an important part of both counterterror and police work. But the whole FBI—and DoJ, and NSA, and Homeland Security, ad infinitum—is slowly dedicating itself to attempting to predict the future, and the only way it believes it can make that happen is by getting more access to electronic communications, because somewhere in our billions of emails and texts lies the keys to a terror plot.

And that is why Comey's dedication to turning the FBI into an intelligence agency is concerning. Director Mueller's historic mission shift was fully predicated on the idea that if the FBI was to find a needle, it'd need to build a haystack first. So the FBI will continue to increase its surveillance capabilities and redouble its efforts to make accessing electronic communications easier, all because of the continued specter of terrorism. Meanwhile, Americans' privacy rights will continue to slip away.

@derektmead