Independent New Hampshire Journalism · Northfield, NH

No Evidence Required: How the FBI, DEA, and New Hampshire Decide Who Gets Watched

The threshold to open a file is lower than most people think, the safeguard for journalists and critics is a single word in agency policy, and New Hampshire plugs into the machine through a Concord office most residents have never heard of.

The FBI can open a file on you tomorrow with no evidence that you have done anything wrong. Not a tip, not an allegation, not a whisper of a crime: only what its own rulebook calls an “authorized purpose.” At that stage, called an assessment, agents can already follow you, pull your trash, run you through commercial databases, task an informant against you, and demand your phone and email subscriber records. No judge signs off. Most people picture surveillance as the last step in a case built on hard proof. It is often the first step, and the proof comes later, if it comes at all.

That gap between what people assume and how the system works lands harder in New Hampshire than most residents realize, because the state does not sit outside this apparatus. It feeds it. And the one rule meant to keep a journalist, a protester, or a loud critic of a police department from being swept in is not a statute. It is a single word buried in internal Justice Department policy, and that word has failed before.

The three tiers, and how low the first one sits

The Bureau runs on two documents: the Attorney General’s Guidelines for Domestic Operations and its own Domestic Investigations and Operations Guide. Together they set three escalating levels of scrutiny, each demanding more justification than the last.

The floor is the assessment. It requires “no particular factual predication,” meaning no evidence and no allegation, only an authorized purpose tied to a federal crime or a national-security concern. Justice Department records obtained by the New York Times showed the FBI opened 11,667 assessments in one tracked period, and roughly 95 percent produced nothing and were closed, leaving the person filed inside the Bureau’s systems anyway. What an agent can do at that no-evidence stage is not small: physical surveillance, trash pulls, database checks, tasking informants, and grand-jury subpoenas for subscriber records.

Above it sits the preliminary investigation, which needs “information or allegation” that a federal crime or threat may be occurring. Not probable cause. Not reasonable suspicion. An allegation that clears a basic sniff test. These can run a year, longer with headquarters sign-off.

The top tier is the full investigation, opened on “an articulable factual basis” that a crime may be occurring. This is the level that unlocks the heavy machinery: wiretaps, sustained electronic surveillance, undercover work. The DEA and the New Hampshire State Police do not use this exact rulebook, but they climb the same ladder, from poking around with open tools to needing a judge.

What being a journalist does to the math

Here is where the arithmetic turns against people who do what Granite State Report does. An investigation touching news media is flagged inside the Bureau as a “sensitive investigative matter,” which triggers extra notice up to headquarters and the Justice Department. On paper, that is a protection. In practice, a 2026 Government Accountability Office report, obtained and published by Racket News rather than released by the GAO itself, showed the opposite pull. Among roughly 1,100 sensitive assessments, the FBI converted 48 percent into investigations, against 14 percent of the roughly 124,000 ordinary ones. Sensitive subjects, a category that includes news organizations, were escalated at more than three times the base rate.

The ground under that shifted in the past year. A December 2025 national-security memorandum known as NSPM-7, paired with a Justice Department memo the same month targeting “Antifa-aligned” groups, drew warnings from analysts across the spectrum. The Cato Institute and the Brennan Center argued that its framing of domestic terrorism, reaching categories like “anti-capitalism” and “anti-Americanism,” effectively pre-satisfies the policy’s already-thin free-speech guardrail, because ideology can be recast as the “authorized purpose” that opens a file. That reading is contested and the memo’s status is moving. The point for a working reporter is plain: the definition of what counts as a legitimate reason to look has been getting wider, not narrower.

The DEA’s signature move: a subpoena no judge sees

The Drug Enforcement Administration carries a tool the other agencies would envy. Under 21 U.S.C. § 876, it can demand records, including phone, financial, travel, and subscriber records, on its own signature. The standard is not probable cause. It is whether the records are “relevant or material” to an investigation. A DEA official signs it; no judge reviews it before it goes out. A court only enters the picture if the target refuses, at which point the agency has to go ask one to enforce it.

That power is not theoretical, and its reach grew last year. When Congress reauthorized foreign-intelligence surveillance in 2024, it widened the definition of foreign intelligence information to cover the international production, distribution, and financing of illicit drugs, pulling drug-trafficking data further into the surveillance system. The agency’s history with this authority is not clean either. A 2019 Justice Department inspector-general review confirmed the DEA had used administrative subpoenas to collect billions of phone records over decades without ever showing probable cause. The related concern defense lawyers raise is “parallel construction,” building a second, courtroom-ready evidence trail to hide that a case began with an intelligence source.

New Hampshire’s piece: a fusion center in Concord you’ve never heard of

None of this stops at the state line, because New Hampshire runs its own node in the network. It is called the New Hampshire Information and Analysis Center, it sits in Concord, and most residents have never heard its name. Established under RSA 651-F as an “all-crimes/all-hazards” counter-terrorism center, it is operated jointly by the New Hampshire State Police and state Homeland Security under the Department of Safety.

The intelligence work is handled by the State Police Terrorism and Intelligence Unit, stood up on October 1, 2001. By the agency’s own description, it collects and analyzes intelligence on criminal and terrorist activity, distributes it across federal, state, county, and local agencies, and wires directly into the FBI’s New Hampshire Joint Terrorism Task Force, the U.S. Attorney’s anti-terrorism council, the Treasury’s financial-crimes network, the regional police information network, and the DEA’s El Paso Intelligence Center. One state office, connected to nearly every arm of the system described above.

The unit says it operates under 28 CFR Part 23, the federal rule meant to bar a criminal-intelligence system from keeping a file on someone absent reasonable suspicion of criminal conduct. That regulation is the paper guardrail on what the center can store about a Granite Stater. Whether it holds is a question the public rarely gets to test, which is exactly why the records are worth asking for.

What crosses the line, and what doesn’t

So what pushes a person from no interest to a file? The legitimate triggers are specific. A threat or advocacy of violence, especially where the words show an apparent intent to act. Material support, meaning money, logistics, or recruitment, flowing to a designated group. Weapons acquisition paired with statements or planning. Surveillance or casing of infrastructure, officials, or events. And most common of all, a referral: a tip line, a fusion-center bulletin, a bank’s suspicious-activity report, a named informant. Referrals are the usual on-ramp, and they are only as reliable as whoever made them.

Now the line meant to protect the rest. No investigation may be opened solely on First Amendment-protected activity, or on someone’s race, ethnicity, national origin, or religion. Reporting and publishing, filing Right-to-Know requests, criticizing a police chief, suing one, holding and voicing sharp political or religious views: none of that is lawful grounds for a threat file. On paper, a journalist is insulated.

The trouble is the word carrying all the weight: solely. Agencies have historically paired a sliver of something else with protected activity to clear the bar. The assessment tier needs no predicate at all. Journalists sit in the sensitive category that escalates at triple the rate. And the definition of a legitimate purpose keeps widening. The safeguard is agency policy, not hard law, and its enforcement record is thin. Doing the work cannot lawfully make you a threat on its own, but the lowest-scrutiny tier is precisely where that principle gets tested, and it has been failed before.

New Hampshire is stricter on you than the feds are

There is a flip side worth every reporter’s attention, and it runs the other way. New Hampshire’s own recording law is tougher on citizens than federal law is. Under RSA 570-A, intercepting an oral or telephone communication without the consent of every party is a felony. There is no exception for a private citizen who happens to be part of the conversation, and the state Supreme Court has read the statute to protect privacy more broadly than federal law does. Cell-site simulators, the devices that impersonate a cell tower to locate a phone, require a warrant based on probable cause under RSA 570-A:2-a.

And the statute has been turned against people pointing cameras at police. The case that put New Hampshire on the map for it, Gericke v. Weare, grew out of an arrest for recording a traffic stop, charged under the wiretap law; a federal appeals court recognized a First Amendment right to film officers doing their jobs in public. If you record in the field, that is the exposure to understand before you press the button.

The oversight that’s supposed to catch this

The checks exist on paper. A special court reviews foreign-intelligence surveillance. Inspectors general audit. Congressional committees receive reports. Minimization rules and 28 CFR Part 23 govern what gets kept. The failures are documented and current. Section 702, the warrantless-collection authority that sweeps in Americans’ communications as a byproduct of targeting foreigners, lapsed on June 12, 2026, after Congress spent months postponing the deadline and never reached a deal. Its status is moving week to week. And the compliance record under the prior version was poor: the surveillance court found the FBI systematically violating even the modest query limits Congress had imposed.

Put it together and the picture is not a conspiracy. It is a system with a low front door, a widening definition of who belongs inside it, guardrails written in policy instead of statute, and a New Hampshire office quietly wired into all of it. For anyone who reports, files records requests, or criticizes the government here, the protection is real but thin, and the thinnest point is the tier where no one has to prove a thing. The records that would show how the state’s own piece operates are public. Someone should ask for them.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Every factual claim above was checked against the sources in the fact-check table before publication; statutory and agency claims were read against primary text and official pages, and reported figures are attributed to the outlet that produced them. Two federal tools mentioned in passing, National Security Letters and the Supreme Court’s 2018 Carpenter decision on cell-site location data, are described by function; confirm exact code sections against the U.S. Code before any legal reuse. The characterization of NSPM-7 is drawn from published analysis by the Cato Institute and the Brennan Center, and the memorandum’s status is moving, as is the reauthorization status of Section 702; verify both against current primary sources. This piece rests on statutes, official agency descriptions, and published reporting, with no on-the-record interview; an on-record response from the N.H. Department of Safety or the legal director of the ACLU of New Hampshire would strengthen it and is being sought. Corrections: Granite State Report corrects verified errors promptly and appends a note identifying what changed and when.