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Opinion AP: Justice Department report ‘effectively condone[s]’ FBI impersonation incident

FBI Director James B. Comey at FBI Headquarters on July 5. (Cliff Owen/Associated Press)
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On Wednesday, Gallup released the results of a poll showing that trust in the media among Americans had dipped to an all-time low.

On Thursday, the Justice Department’s Inspector General issued a report that the Associated Press, in an official statement, short-handed in this way: “The Associated Press is deeply disappointed by the inspector general’s findings, which effectively condone the FBI’s impersonation of an AP journalist in 2007. Such action compromises the ability of a free press to gather the news safely and effectively and raises serious constitutional concerns.” The statement concerns a case involving Timberline High School in Washington state. Over the course of several days in 2007, the school received bomb threats via email and was forced to evacuate the premises. Once on the case, the FBI faced the challenge of locating the bomb-threatening emailer, who had expertly camouflaged his location through the use of so-called proxy servers.

The Seattle Times in 2014 revealed that the FBI had smoked out the perpetrator, then-15-year-old Charles Jenkins (a pseudonym used in the IG report), by masquerading as an AP editor. Here’s the plan, as summarized in the IG report: “FBI agents developed a plan to surreptitiously insert a computer program into Jenkins’s computer that would identify his true location. An FBI undercover agent posed as an editor for the Associated Press (AP) and contacted Jenkins through e-mail. During subsequent online communications, the undercover agent sent Jenkins links to a fake news article and photographs that had the computer program embedded within them. Jenkins activated the computer program when he clicked on the link to the photographs, thereby revealing Jenkins’s true location to the FBI.”

Media organizations reacted with indignation. And with good reason, too: If FBI agents are authorized to impersonate reporters, who’s going to believe actual reporters when they ring up or email in search of information? Any good paranoid source — and most good sources are paranoid — will default to this jitter: That’s not a reporter, that’s the cops. “The utilization of news media as a cover for delivery of electronic surveillance software is unacceptable. This practice endangers the media’s credibility and creates the appearance that it is not independent of the government,” wrote a gang of news organizations and others in a November 2014 letter to then-Attorney General Eric Holder and FBI Director James B. Comey.

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So what steps must the FBI take in order to present itself as some dowdy old journalist? At the time of the Timberline case, noted the IG report, “FBI policies did not prohibit the practice of agents impersonating journalists, nor was there any requirement that agents seek special approval to engage in such practice.” Great!

This June, however, the FBI adopted an “interim policy” to prohibit undercover media-impersonation unless “those activities are authorized as part of an undercover operation by the Deputy Director, after consultation with the Deputy Attorney General.” The report outlines the full run of red tape that would stand in the way of an AP impersonation:

The AP is “organized and operated for the purpose of gathering, reporting, or publishing news” and clearly falls within the definition of “news media” under FBI policy. It is equally clear under FBI policy currently in effect, that any undercover activity that would involve an employee posing as a member of the AP would have to be approved as an undercover operation at FBIHQ. The head of the FBI field office proposing the activity would first have to approve the application for the undercover operation to be submitted for approval to FBIHQ; the Undercover Review Committee at FBIHQ would then be required to review the application; and the Deputy Director, after consulting with the Deputy Attorney General, would be responsible for approving the application.

The AP wants something more than just bureaucracy: “Once again AP calls on the government to refrain from any activities involving the impersonation of the news media and we demand to be heard in the development of any policies addressing such conduct.”

Brian Barrett, the AP’s assistant general counsel, told the Erik Wemple Blog that he found the report to be “deeply concerning.” Whatever final policy the Justice Department approves, notes Barrett, should take into consideration the views of media organizations. Back in 2013, the Justice Department reviewed its procedures for using law enforcement tools to pry information out of the press, following a public uproar over the use of subpoenas to secure records from more than 20 telephone lines of the Associated Press as part of a leak investigation. As part of that review, the Justice Department pulled in media organizations. “There have been some positive steps to come out of that,” said Barrett.

Should the AP get a chance to face off with Justice officials over this matter, there’s not much doubt about what they will say: “I think we just view it as a dangerous and harmful practice and we don’t want to see it happen at all,” said Barrett.