FBI agents posing as AP journalists OK in 2007, but not anymore – report
The disclosure of the agent’s impersonation caused an uproar among the press, prompted a lawsuit, and led to policy changes.
A report by the Justice Department’s inspector general, released Thursday, said the FBI recently put in place new policies meaning top-level approval is required before agents can pose as journalists. It called the changes an "important improvement" over past practices.
“Under this new policy, FBI agents may only represent, post, or claim to be members of the news media when authorized by the FBI Deputy Director, after consultation with the Attorney General as part of an undercover operation review…,” said the IG report. “The policy expressly prohibits FBI employees from engaging in such activity if it is not part of an undercover operation.”
The investigation found that the FBI’s policies in 2007 did not prohibit agents from impersonating journalist nor was there any requirement that an agent seek approval to engage in such undercover activities. The investigation also found where there was some guidance it was “less than clear.”
“As a result, we believe the judgements agents made about aspects of the planned undercover activity in 2007 to pose as an editor for the AP did not violate the undercover policies in place at that time.”
The policy changes came about after disclosures over an FBI sting in 2007, when an FBI agent posed as a fictitious editor working for the Associated Press in order track a suspect who anonymously emailed a series of bomb threats causing multiple evacuations at Timberline High School, near Seattle, Washington.
30 page IG report on FBI impersonating journalists contains one paragraph on the First Amendment— ((Jake Laperruque)) (@JakeLaperruque) September 15, 2016
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The FBI got involved in the case after local law enforcement were unable to identify or find the suspect and asked for help from the FBI’s cybercrime task force. An agent posing as journalist emailed the suspect with a link to a photograph that triggered a hidden software program that disclosed where the student was located.
The operation was successful and Charles Jenkins, a 15-year-old high school student, was arrested and pleaded guilty to making the threats. He was subsequently charged as a juvenile in 2007, sentenced to 90 days of juvenile detention, two years of supervised release, two years of mental health counseling and two years of probation with restrictions on internet and computer usage. Jenkins was also expelled from school, according to the report.
The IG investigation began after a 2014 story in The Seattle Times, based on e-mails obtained by the Electronic Frontier Foundation through a FOIA request to the FBI that revealed the bureau’s impersonation of an AP journalist to send a bogus news story.
That prompted the AP to send a letter to then-Attorney General Eric Holder, protesting the FBI’s impersonation of the news media. FBI Director James Comey wrote in The New York Times a week later that this was considered an appropriate “technique” in 2007.
The same day, the Reporters Committee for Freedom of the Press wrote to Comey and Holder on behalf of 25 news organizations, objecting to the practice and arguing it “endangers the media credibility and undermines is independence, and that is appeared to violated FBI guidelines for when such tactics are permissible.” The letter also requested the FBI disclose when and where he had impersonated press in the past, a FOIA request was also made for that information. When no records were forthcoming, the AP and RCFP filed a civil action against the FBI and the DOJ, seeking that they comply with the FOIA request.
The report recommended that the FBI update its undercover policies to codify the June 2016 interim guidelines. It also said the FBI should further consider what level of review is required before an agent uses the name of third-party organizations without their knowledge or consent.
American Civil Liberties Union’s Chris Soghoian, who first help undercover the FBI ruse, told Reuters the report "confirms that the FBI kept the court in the dark regarding the most problematic aspect of this investigation: the impersonation of the news media by the government."
"This is a huge problem, as courts cannot perform oversight over government tactics that are hidden from them," Soghoian added.