Domestic Investigations and Operations Guide
On Campus, the FBI Sometimes Operates Outside Restrictions
Jan. 31 2017

The FBI’s access to university campuses is limited by internal safeguards intended to protect First Amendment rights. But according to the policy guide, the safeguards only apply when an FBI investigation encompasses recognized student groups, or faculty members whose university positions are relevant to the investigation. The notion that the FBI may be operating on university campuses has generated major controversy in prior decades.

Perhaps partially in response to those controversies, the FBI has defined for itself certain “sensitive investigative matters” — subjects or territories for which the bureau’s operations require higher levels of supervision or approval, because they risk infringing on constitutionally protected activities. Previously released FBI policies made clear that among such sensitive matters was anything to do with academia, political or religious figures or groups, houses of worship, or the media.

The manual states that “the sensitivity related to an academic institution arises from the American tradition of ‘academic freedom,’ (e.g., an atmosphere in which students and faculty are free to express unorthodox ideas and views and to challenge conventional thought without fear of repercussion).” Still, the guide notes, this does not mean that academia is “off limits” to the FBI.

1 To qualify for safeguards, a campus investigation needs an “academic nexus”

The unredacted DIOG contains new details on how the FBI treats investigations with an “Academic Nexus” — that is, when an investigation has to do with an administrator, a faculty member, or a student group at a college or university within the United States. In those cases, the FBI imposes higher levels and oversight requirements on its agents. Even so, an “academic nexus” only adheres to those student groups that are “recognized and approved by the university or college.” And according to the rules, an investigation into an administrator or faculty member has to be somehow “related to the individual’s position at the institution” in order to be considered an academic nexus and therefore treated as sensitive.

For instance, scrutinizing “a professor who is the subject of an international terrorism investigation unrelated to his status as a professor” would not constitute a sensitive matter. And presumably, agents have some flexibility when looking into students, associations, or on-campus protests that don’t have school sanction — although the FBI says agents are instructed to lean toward designating something sensitive when there is any doubt.

The Intercept also reviewed a 2013 version of a classified annex to the DIOG, which specifies other instances where the sensitive designation doesn’t apply: in the case of a person who “has been in contact with or targeted by an ‘agent of a foreign power,’” or has been affiliated with or otherwise “acted on behalf of a foreign power.” (Similar carve-outs exist for when the FBI is looking into a member of the media.)

The exception is written in such a way that it seems that it would apply to students or professors who had any affiliation with foreign governments, even far in the past. It also could be read to include expatriate dissidents or those who sought asylum in the United States.

An FBI spokesperson said that “the Academic Nexus provision in the DIOG is intended to provide protections for individuals engaged in genuine academic pursuits,” and that the FBI also has to protect against “sophisticated foreign adversaries, many of whom do not believe in academic freedom, who pose a threat to the U.S. national security. Such adversaries use overt and covert operations to act against the U.S., irrespective of the location.”

- Jan. 31 2017
2 FBI agents can mingle on campuses, within limits

If an FBI agent wants to use undercover tactics on campus — say, “participating in the activities of the academic institution in an undisclosed capacity while registering and attending classes” — he or she has to submit to extra checks and oversight, because the FBI considers anything with an “academic nexus” to be sensitive.

However, merely registering for classes doesn’t trigger these requirements, and the manual says nothing about hanging around on campus without attending classes or registering. Presumably, the FBI can monitor things like Facebook groups or informal circles of friends without restriction.

The FBI insists that the layers of supervisory review detailed in the guide encourage agents to err on the side of caution when deciding whether an investigation should be classed as sensitive. “These are a voluntary narrowing of our authorities,” a spokesperson said of the guidelines. “We learn from history and try to get better.”

The FBI’s history on college campuses is certainly cautionary. During the era of J. Edgar Hoover, the bureau sent agents to dig up dirt on professors it suspected of being communist. It also investigated black student unions and student protesters. According to Seth Rosenfeld, author of the book “Subversives: The FBI’s War on Student Radicals and Reagan’s Rise to Power,” the bureau used a broad network of informants to investigate lawful First Amendment activity, using the information it gathered “in ways the courts and Congress later found improper and unlawful, to influence public opinion and university policies, and to harass people whose opinions bureau officials disapproved.”

Since 9/11, there have been concerns about the FBI unfairly scrutinizing Muslim communities, including on campuses. The Intercept recently reported on an FBI presentation that advocated cultivating young informants in Muslim Student Associations. Presumably, such an operation would have been considered a sensitive matter involving a recognized campus group, and would be subject to extra oversight. Even so, Muslim student leaders told The Intercept that they were upset that a cherished space on campus was cast under suspicion.

- Jan. 31 2017