Digital Evidence Collection and Analysis by Law Enforcement is moving faster than the Law

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In one of the most unintentionally hilarious things recently uttered, Federal Bureau of Investigation (FBI) Director Kash Patel identified how he caught former FBI Special Agents doing…. well…what FBI SAs are supposed to do.  Per the New York Times:

“You know how I caught these guys?” Mr. Patel asked. “Because these guys were so arrogant, they would write everything down, and I found the documents.”

If you are lucky enough to be hired as an SA, you spend eighteen weeks at the FBI Academy in Quantico learning how to do the job.  One might think that is primarily firearms training and defensive tactics.  The reality is you learn how to properly write FBI paperwork about the work you do when doing routine actions like interviewing witnesses, arresting subjects, and collecting evidence.  The FBI has a dizzying array of paperwork all SAs must learn to use properly: FD-302s, Electronic Communications (now FD-1057s), informant paperwork, leads to other offices, undercover activity, evidence collection, surveillance logs, etc.  The humdrum of paperwork was interrupted periodically to do a mock operation at Hogan’s Alley.  Ironically, the operations at Hogan’s Alley served to generate more paperwork.

The overarching theme learned in the Academy, and reinforced in FBI field offices after graduation, is, “If it isn’t written down, it didn’t happen.”  This theme is memorialized in FBI policy as the only thing the FBI loves more than paperwork is policies about paperwork.  The FBI’s Records and Information Management Policy Guide discusses what constitutes an FBI record and how those records are to be maintained.

From the policy, “A record is all recorded information, regardless of form or characteristic, made or received by a federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.” (44 U.S.C. §3301). The policy also helpfully identifies things that are not a record such as copies of correspondence and extra copies of documents preserved only for convenience or reference.  

FBI policy even discusses how to dispose of unnecessary copies of records.  All unnecessary paperwork is to be shredded.  Every office, including FBI HQ, has huge brown paper bags (like those sold at your local hardware store) for yardwaste to quickly and securely dispose of the paperwork.  Other staff come by periodically to collect the bags.

Senior FBI SAs routinely print copies of documents and their calendars for meetings and other management tasks.  All of those are sensitive if not classified.  Therefore, they dispose of these copies when they are done with them.  The originals are maintained within the appropriate record-keeping system subject to the proper retention requirements.  Senior FBI SAs move from role to role routinely and they purge whatever they do not need.

Since the beginning of the second Trump administration, many senior FBI SAs have been dismissed or voluntold to retire.  As they normally would, they all cleaned likely their offices upon their exit.  

To return to the Director Patel quip, FBI Special Agents wrote everything down and disposed of it all as required by policy… because that is what they have always done.

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