Racially Motivated Spying Pretext Challenging the FBI's New Regime of Racialized Surveillance

Abstract

This Comment critiques the Federal Bureau of Investigation’s (FBI) surveillance policies against Black activism following changes in the FBI’s threat terminology from “Black Identity Extremism” (BIE) in 2017 to “Racially Motivated Violent Extremism” (RMVE) in 2020. RMVE is a facially race-neutral category that includes both Black activists protesting racist violence and white supremacists who commit it. This change allowed the FBI to escape criticism of the BIE designation; however, the FBI’s narrative that Black activism is dangerous persists, and its surveillance power over Black activists has only increased. To justify this move, the FBI has engaged in the novel practice of “counter-profiling.” This entails grouping white supremacists and Black activists, then citing the rising threat of white supremacist violence to justify increased surveillance of all RMVEs, including Black activists—even though there is no reliable evidence of a violent extremist threat from Black activism. These FBI practices perpetuate a long history of racialized surveillance violating the Fourteenth Amendment because they demonstrate a racially discriminatory intent and use a racial classification that cannot survive strict scrutiny.