Inspector General Says FBI Probably Shouldn't Impersonate Journalists; FBI Says It Would Rather Impersonate Companies Anyway

from the upgrade-to-fbiOS-10! dept

The FBI’s impersonation of an AP journalist during an investigation raised some serious questions about what the agency considered to be acceptable behavior when pursuing suspects. The outing of this tactic led to a lawsuit by the Associated Press, which was naturally unhappy its name was being used to deliver malware to a teenaged bomb threat suspect.

The FBI performed its own investigation of the matter (but only after it had become public knowledge — seven years after the incident actually occurred) and found that rules may have been broken by this impersonation of a news agency. Certain approval steps were skipped, making the investigatory tactic not exactly by the book. But in the end, the report congratulated the FBI on using the ends to justify the means.

The DOJ’s Inspector General [PDF] has now reviewed the incident as well and, uncharacteristically, is even more supportive and less critical of the FBI’s actions.

We found that Department and FBI policies in effect in 2007 did not prohibit agents from impersonating journalists or from posing as a member of a news organization, nor was there any requirement that agents seek special approval to engage in such undercover activities. The only policies in effect at the time that might have required elevated consideration regarding the FBI’s plans turned on whether the undercover activity involved a “sensitive circumstance.” We concluded, given the lack of clarity in the policy language, that making a determination whether a situation was a “sensitive circumstance” was a challenging one and that the judgments made by the agents were not unreasonable given the lack of clarity.

Basically, the OIG has granted the FBI a “good faith” exception. The report also notes that an interim policy eliminated much of the vagueness previously present in the FBI’s policies. That being said, the OIG’s recommendation doesn’t want for vagueness.

Recommendation 2: The FBI should consider the appropriate level of review required before FBI employees in a criminal investigation use the name of third party organizations or businesses without their knowledge or consent.

“Consider the appropriate level of review” sounds a lot like something that could be interpreted as “roll the dice and see what happens” or “it’s always easier to ask for forgiveness than permission.” Fortunately, the OIG has additional guidance on this recommendation, which makes it less vague than it first appears.

After reviewing a draft of this report, the FBI provided comments explaining that the heightened level of review and approval required for FBI employees to pose as members of the news media was introduced because such activity potentially could “impair news-gathering activities” under the First Amendment, but that such constitutional considerations do not apply to businesses and other third parties. Our recommendation, however, does not rely on equating the reputational interests of some third party organizations and businesses with the constitutional interests of others. We believe that reputational interests, and the potential impact FBI investigations can have on those interests, are themselves sufficiently important to merit some level of review before FBI employees use the names of third party organizations or businesses without their knowledge or consent.

As is pointed out by Marcy Wheeler, the FBI is arguing that it shouldn’t have to seek special approval to imitate non-journalistic entities. It could impersonate any number of companies without additional oversight because there are fewer Constitutional concerns. It could — in the hypothetical Wheeler proposes — pretend to be Apple and issue a software update. That’s one way to ensure a phone’s crackable once the FBI gets its hands on it.

So, the change in policy will only affect the FBI’s ability to impersonate journalists or their employers. It won’t prevent the FBI from doing this. It will only require additional signatures on the paperwork.

Another OIG finding of note is that the FBI is the worst at impersonating journalists. Fortunately for it and its terrible imitation skills, it was only up against a 15-year-old bomb threat suspect.

Grant identified himself in the e-mail as “Norm Weatherill,” an “AP Staff Publisher.”

At 2:55 p.m. Jenkins responded, “leave me alone.”

Grant replied at 3:21 p.m.:

I respect that you do not want to be bothered by the Press. Please let me explain my actions. I am not trying to find out your true identity. As a member of the Press, I would rather not know who you are as writers are not allowed to reveal their sources. The school has continually requested that the Press NOT cover this story. After the School Meeting last night, it is obvious to me that this needs coverage. Readers find this type of story fascinating. People don’t understand your actions and we are left to guess what message you are trying to send. . . .

Nothing says “competent journalist” like random capitalization and referring to the Associated Press as “the Press…” if that’s even what’s happening here. It could very well be that “the Man” assumes everything is “us vs. them” and that “the Press” is just another key player in a larger conspiracy to subvert “School Meetings” and the administrators that oversee them. Whatever this mess of words is, “competent” it certainly isn’t.

On top of that, the FBI couldn’t even nail down a writing style that has its own, frequently-updated guidebook, as Ryan J. Reilly points out at the Huffington Post.

Despite the fact that the “entire investigative team was present” and “consulted together about what to say before the message was sent,” none of them apparently thought to follow AP Style.

Neither did the fake news story the FBI posted to its fake website — the link used to serve the suspect with malware.

All joking aside, the policies the FBI had in place before this blew up were plainly inadequate. The policies replacing them aren’t much better. The agency is already given plenty of leeway in terms of investigative tactics. Limiting its impersonation to those that don’t implicate First Amendment rights won’t stop it from impersonating any other private entity that might serve its purposes.

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Companies: a&p, associated press

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Comments on “Inspector General Says FBI Probably Shouldn't Impersonate Journalists; FBI Says It Would Rather Impersonate Companies Anyway”

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The Wanderer (profile) says:

Re: fair play

Because an FBI agent has authority backed by force of law, whereas a journalist has only the authority of custom and persuasion. Thus, a journalist impersonating an FBI agent is arrogating to him- or herself an authority to which he or she is not entitled (and falsely pretending that failure to cooperate may result in negative governmental action), whereas an FBI agent impersonating a journalist is only drawing on the courtesy which many people choose to voluntarily grant to journalists.

Or something like that.

Someone Else says:

Third party?

Why would the FBI need to impersonate a third party organization when it already has a portfolio of first party fake companies? I believe it was the aerial surveillance story that broke the news of the existence of several shell companies that own aircraft that have been observed flying repetitive patterns over cities. Just use one of those.

Roger Strong (profile) says:

Re: Re: Re: Re:

Nope. The earliest known use of “America” was in 1507, referring to what is now known as South America. Not so much plural for “those continents”, but singular for “the new world.” America the country didn’t arrive until 276 years later in 1783.

Apparently the use of “America” to describe the western hemisphere is more popular in Spanish speaking countries.

Anonymous Coward says:

Re: Re: Re:2 Re:

… in 1783.

In Congress, July 4, 1776. The unanimous Declaration of the thirteen united States of America.

Important milestones related to the Articles of Confederation include…”

June 11, 1776 – The Continental Congress resolved “that a committee be appointed to prepare and digest the form of a confederation to be entered into between these colonies.”
 . . .

Roger Strong (profile) says:

Re: Re: Re:3 Re:

September 3, 1783: The date that Great Britain recognized US independence.

If US independence didn’t require British acknowledgement, then it would seem logical that Confederate independence didn’t require Union acknowledgement. A contention the Union vigorously disputed.

This policy continues today. For example the US won’t recognize Taiwan’s independence unless China does.

Anonymous Coward says:

Re: Re: Re:4 Re:

For example the US won’t recognize Taiwan’s independence unless China does.

You misunderstand the policy.

The policy is a recognition of facts on the ground. At sea. And in ballistic orbit. It’s quite unfortunate that the diplomatic language used to dress it often suffers from the corrupting influence of international lawyers.

Roger Strong (profile) says:

Re: Re: Re:3 Re:

BTW, that “Continental Congress” was a somewhat different vision. It was created with the expectation that the entire continent would rush to join. When that failed they used their “Continental Army” to invade Canada in 1775. That failed too, as did the 1812 invasion.

The Spanish speaking parts of America (as in the western hemisphere) didn’t have to put up with that, which is probably why the use of “America” to describe the western hemisphere is more popular there.

Roger Strong (profile) says:

Re: Re: Re:3 Re:

Attempts? “American” properly applies to anyone in North or South America in the same way that “European” applies to anyone in Europe or “Asian” applies to anyone in Asia. And it did for over 275 years before the United States even existed.

Sure, the term is less popular among say, Canadians. Imagine if a while back – in what was already called Europe – one country renamed itself “The United States of Europe”, or more commonly, “Europe.” And started calling themselves “Europeans” as a nationality. And created a “Continental Congress” claiming to represent the entire continent. And then invaded the other countries with their “Continental Army” when they failed to join. Others in Europe would today would avoid calling themselves Europeans too.

Nevertheless, “European” would still apply to those in Europe, just as “American” applies to those in the Americas.

Roger Strong (profile) says:

Re: Re: Re:5 Re:

Again, “America” was the name for the western hemisphere for 275 years before some revolutionaries hijacked it. People in south, central and north America could properly be called Americans.

That one highly presumptive group of revolutionaries later tried to hijack the name, doesn’t change this.

Anonymous Coward says:

Re: Re: Re:6 Re:

“America” was the name for the western hemisphere for 275 years…

Two hundred and seventy-one years, from the April 25, 1507 printing of Martin Waldseemüller and Matthias Ringmann’s Cosmographiae Introductio, in the village of St. Dié, under patronage by Duke René II of Lorraine —— two hundred and seventy-one years from that date up to the February 6, 1778 signatures on the Treaty of Amity and Commerce and the Treaty of Alliance concluded between the most Christian King, and the thirteen United States of North America.

Two seventy-one, m’sieu, by that calculation.

Roger Strong (profile) says:

Re: Re: Re:7 Re:

Two hundred and seventy-six-plus years. From the April 25, 1507 printing of that map – and no doubt some time before. It’s simply the earliest reference known today.

Up until September 3, 1783, the signing of the Treaty of Paris. The date that Great Britain recognized US independence. Again, if US independence didn’t require British acknowledgement, then it would seem logical that Confederate independence didn’t require Union acknowledgement. A contention the Union vigorously disputed.

This policy continues today. For example the US won’t recognize Taiwan’s independence unless China does, despite having a Mutual Defense Treaty with Taiwan in the past.

Two hundred and seventy six plus, dude, by that calculation.

Anonymous Coward says:

Re: Re: Re:8 Re:

… it would seem logical that…

Had the Battle of Antietam not resulted in General Lee’s withdrawal southwards across the Potomac river on the night of September 18th, 1863, it is quite logical that the British government would not have insisted upon inserting the following reservation into Article VI of the Treaty of Washington (1871)—

Her Britannic Majesty has commanded her High Commissioners and Plenipotentiaries to declare that Her Majesty’s Government cannot assent to the foregoing rules as a statement of principles of International Law which were in force at the time when the claims mentioned in Article I arose . . .

What does $15.5 millions in the coin of 1872 amount to in today’s dollars?

Returning to the earlier era, you doubtless recall that in the aftermath of General Burgoyne’s surrender on October 17, 1777, the following year Great Britain declared war upon France on or about March 17, 1778.

Anonymous Coward says:

Re: Re: Re:8 Re:

Note: I’m posting this several days after the article has moved into the archives, and Mr Strong, along with other participants, have all apparently left the discussion here. Nevertheless, certain facts ought to be entered into the record alongside the late conversation.

This policy continues today.

United States of America, Department of State: Bureau of European and Eurasian Affairs: Fact Sheet: U.S. Relations With Serbia (Mar 10, 2016)

Kosovo declared its independence from Serbia in 2008, which the U.S. recognized, but Serbia rejected. Consequently, Serbia withdrew its ambassador to the U.S. from February to October 2008. Pursuant to its constitution, the Government of Serbia still considers Kosovo to be part of its territory and has not recognized Kosovo’s independence, although more than 100 countries have done so.

Further from the State Department: The Case for Kosovo:

The United States formally recognized Kosovo as a sovereign and independent state on February 18, 2008. The United States considers Kosovo to be a special case that should not be seen as a precedent for other situations. The sequence and nature of events that led to Kosovo’s independence were themselves unprecedented. . . .

Assuredly, withdrawal of an ambassader for some months, although quite serious, is not as grave an act as declaration of a state of war.

( Also of interest and connexion are the ICJ proceedings and advice with regards to the “[a]ccordance with international law of the unilateral declaration of independence in respect of Kosovo”. )

Anonymous Coward says:

Re: Re: Re:9 Re:

( Also of interest and connexion are…

Before closing some browser tabs, let me additionally and briefly note that although Her Canadian Majesty’s government does not seem to have submitted statements or comments in those 2009 ICJ Kosovo proceedings, Her Brittanic Majesty’s government in both its written and oral statement there cited the Canadian Supreme Court’s 1998 Reference re Secession of Quebec, and specifically that latter’s paragraph 142.

I mention this not to establish the correctness of the propositions therein stated, but insamuch as the continuous policy of the United States of America has been, and remains, “a decent respect to the opinions of mankind”.

Wimpheling (profile) says:

Fake Journalism

Love the Mike Baker tweet… Now who is going to debunk ISIS’s newspaper “Dabiq” ?

Journalists all over the press are saying how the design and all are nice and well-done… I’ve read it and it looks exactly like a 90s Jehovah Witness propaganda piece, i wish some skilled designer would show how their reputation is totally overrated…

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