FBI Releases Guidelines On Impersonating Journalists, Seems Unworried About Its Impact On Actual Journalists

Legal Issues

from the whatever.-at-least-it's-not-harming-investigations.-yet. dept

The FBI’s impersonation of journalists raised questions about its investigative activities, none of which the FBI felt like addressing. An Inspector General’s investigation of FBI investigations using this tactic found that it was generally a bad idea, but not an illegal or unconstitutional one. Prior to the investigation, the FBI apparently had no clear policies governing this form of impersonation, which it used to snare a school-bombing suspect.

Following the report, a policy was put in place that added some additional layers of oversight but didn’t indicate the obvious downside of impersonating journalists: that the people the FBI wants to investigate are going to do a lot less talking to anyone they don’t know, which includes journalists attempting to document newsworthy events that might contain criminal activity.

The FBI blew it with one of its other impersonation efforts. As Camille Fassett reports for the Freedom of the Press Foundation, a more recent effort may have put a serious damper on its fake news(person) efforts.

In an even more disturbing incident in 2015, FBI posed as a documentary filmmaker crew in order to gain the trust of a group of ranchers engaged in an armed standoff with the government. The fake crew recorded hundreds of hours of video and audio and spent months with the ranchers pretending to make a documentary.

The FBI tacitly acknowledged these efforts are great for the short-term, but ultimately harmful to the FBI in the long-term. Notably, it’s not because they have a chilling effect on press freedoms, but rather because they undermine trust in the entities the FBI wants to impersonate.

The FBI’s own arguments in the case acknowledge the chilling effect on journalism presented by this tactic. In a motion of summary judgment obtained by Freedom of the Press Foundation, the agency argued that it should not be required to disclose details about other instances of media impersonation, on the grounds that “it would allow criminals to judge whether they should completely avoid any contacts with documentary film crews, rendering the investigative technique ineffective.”

The Reporters Committee for Freedom of the Press has obtained the FBI’s guidelines [PDF] for undercover efforts that involve impersonating journalists. They indicate there are several levels of approval needed, but don’t contain details about what’s considered by those making these determinations.

The relevant FBI field office must submit an application to the Undercover Review Committee at FBI headquarters and it must be approved by the FBI Deputy Director after consultation with the Deputy Attorney General. The guidelines do not provide any criteria the FBI Deputy Director and/or the Deputy Attorney General must consider when approving these undercover activities.

All well and good, but one wonders how high the potential impact on civil liberties rates on the scale of 0-Impersonation, or whether it’s more important the agency doesn’t undermine future investigations by setting fire to the reputation of the impersonated entities by opening the Adventurous Reporter dress-up kit once too often.

I don’t believe the FBI doesn’t care at all about the collateral damage. I’m just reasonably certain it’s far more concerned about how often — and how successfully — it will be sued. Adding more layers of oversight won’t necessarily steer agents away from questionable tactics, but it will make it more difficult for plaintiffs to show the FBI carelessly caused damage to their livelihoods by pretending to be the press.

Filed Under: fbi, impersonating journalists, impersonation, journalism, journalists