Recently, several organizations submitted public comments critical of a Department of Justice (DOJ) proposed rule to expand the power of state and local law enforcement agencies to investigate potential criminal activities and report the information to federal agencies. Many noted the proposal is unnecessary for public safety and a threat to free speech and association. DOJ claims the changes are necessary because the existing regulation on criminal investigation does not specifically mention terrorism or "material support thereof."

The DOJ's existing regulation allows authorities that receive funds under the Omnibus Crime Control and Safe Streets Act of 1968 (Safe Streets Act) to "collect and maintain criminal intelligence information concerning an individual only if there is suspicion that the individual is involved with criminal conduct or activity." (emphasis added) DOJ wants to expand this. On July 31, the agency proposed amendments to the existing regulation that would broaden the scope of activities authorities could monitor to include organizations as well as individuals, along with non-criminal activities that are deemed "suspicious." The proposal would also double the period authorities could keep information without updating or validating it, from five years to ten years, and change the accepted standard of disseminating collected intelligence to agencies having "a need to know and a right to know" to a wider audience of actors, possibly including creditors, employers, and landlords. According to the Washington Post, the proposed rule is "part of a flurry of domestic intelligence changes issued and planned by the Bush administration in its waning months. They include a recent executive order that guides the reorganization of federal spy agencies and a pending Justice Department overhaul of FBI procedures for gathering intelligence and investigating terrorism cases within U.S. borders."

The comment period was limited to 30 days, which is unusual for such a controversial rule. In its comments, OMB Watch highlighted the short comment period and called for the rule to be withdrawn due to concerns about violations of the First Amendment rights of free speech and assembly. The comments noted that the proposed changes would expand information collection to include organizations, and as a result, "Americans may become reluctant to participate in organizations if they feel it will make them targets of government investigations.... Abuse and politicization of investigative powers are not just a potential danger. The problem already exists, and has been exposed in the press." The comments also said the proposed rule is at odds with the Safe Streets Act's requirement that regulations ensure that information collection systems "are not utilized in violation of the privacy and constitutional rights of individuals."

Other critics believe the additional powers will burden police officers with excessive and needless data and hinder the needed focus on legitimate threats. Comments filed by the Defending Dissent Foundation said doubling the information storage period from five to ten years "will undoubtedly increase the volume of obsolete, incorrect and useless information sitting in intelligence databases." OpenTheGovernment.org's comments suggest that proposing to add activities such as taking notes or pictures, drawing diagrams, and voicing extremist views as acceptable reasons to suspect criminal activity "risks adding useless information to the database and making it more difficult to identify legitimate threats."

According to DOJ, some of the proposed changes would facilitate the dissemination of sensitive data at regional intelligence fusion centers and for Joint Terrorism Task Forces. These changes are a cause for concern, according to the American Civil Liberties Union's (ACLU) comments. The ACLU's research details legal problems with fusion center intelligence activities. In addition, a 2007 Congressional Research Service report revealed that guidelines issued in 2006 by the DOJ and the Department of Homeland Security sanction the collection of data "beyond criminal intelligence" in violation of the current DOJ rule. According to the ACLU reports, fusion center officials feared that the inclusion of data obtained under such broad conditions could lead to a reduction in powers granted to future intelligence gathering operations.

Members of Congress have also expressed concern. A Sept. 5 letter from House Judiciary Committee Chair John Conyers (D-MI) and Reps. Bobby Scott (D-VA) and Jerrold Nadler (D-NY) stated that "we question the need to consolidate the FBI guidelines during the waning days of the Administration." They asked the agency to answer a series of questions in writing prior to a Sept. 16 oversight hearing on the FBI's domestic operations.

The proposed rule is being rushed through despite a White House memo issued in May that says all regulations "to be finalized in this Administration should be proposed no later than June 1, 2008." The rush may be because the same White House memo also says that final rules must be published by Nov. 1.