An FBI agent impersonated an Associated Press reporter as part of a scheme to ensnare a suspect who was making bomb threats against a Seattle high school, the agency’s director, James Comey, revealed Thursday.
The disclosure about the 2007 case intensified the objections of media organizations to the tactic, which comes on top of the discovery last week that the FBI sent the suspect — who turned out to be 15 years old — a fake AP news article to infect his computer with tracking software that enabled agents to locate him.
In a letter to the New York Times, in response to an editorial, Comey wrote that an FBI agent “portrayed himself as an employee of the Associated Press” as part of the criminal investigation of the suspect, who was arrested and later convicted in Washington state.
The agent, posing as a reporter, asked the suspect to review the fake AP article about threats against the school, Comey said. The agent told the teenager — apparently via electronic means — that the review was necessary to ensure that the anonymous suspect “was portrayed fairly” in the bogus article, Comey said.
The FBI located the suspect by encoding the fake article with a computer bug, or malware, that revealed his Internet address when he clicked on the article.
FBI officials said the agent, who worked in the Seattle field office, came up with the ruse together with behavioral scientists at FBI headquarters after the specialists concluded the suspect was a narcissist.
“That was part of the discussion in [determining] what this person might respond to, and part of that was public attention of some kind,” said one official, who spoke on the condition of anonymity to discuss internal matters. “From that behavioral assessment came the idea of this person would be the subject of a newspaper story.”
Comey defended the agency’s tactics in his letter, saying it was “proper and appropriate under Justice Department and FBI guidelines at the time. Today, the use of such an unusual technique would probably require higher-level approvals than in 2007, but it would still be lawful and, in a rare case, appropriate.”
Over the past week and a half, FBI lawyers have reviewed the matter and have concluded that the field office did not violate FBI or attorney general guidelines in approving the use of the technique. The office did not seek approval from headquarters.
In particular, the lawyers determined the ruse was not an undercover activity according to the definition in FBI guidelines in force at the time. Those guidelines said such an activity involves “a series of related undercover activities over a period of time,” which meant at least three “contacts,” the official said.
Sending one article to the suspect was “clearly a one-time deal to elicit a response” and put the activity outside the definition, the official said.
The Seattle case was determined not to have involved “sensitive” circumstances, by the FBI’s definition, because it did not involve a “third party” who might interact with the agent, the official said.
Officials said that even if the operation were considered “sensitive,” the field office would have been within its authority to act because the situation “posed an immediate threat to life, liberty or personal safety.” Bomb threats at a high school qualified as such, one official said.
Former FBI undercover agent Michael German said this case “is just one more example of how the guidelines are too permissive.”
The idea that “you would allow the field office to do something like this if it was only one instance fails to protect the public and to protect the FBI,” said German, a fellow at the Brennan Center for Justice. “Clearly this technique was extremely sensitive and troubling to both journalists and the general public, and the use of that type of technique should have the most type of supervision, not the least.”
The AP and a coalition of 25 news outlets, including The Washington Post and the New York Times, protested the FBI’s tactics Thursday.
“This latest revelation of how the FBI misappropriated the trusted name of the Associated Press doubles our concern and outrage, expressed earlier to Attorney General Eric Holder, about how the agency’s unacceptable tactics undermine AP and the vital distinction between the government and the press,” AP Executive Editor Kathleen Carroll said in a statement.
In a letter to Comey and Holder on Thursday, the Reporters Committee for Freedom of the Press and the news organizations asked for full disclosure about the incident.
“The utilization of news media as a cover for delivery of electronic surveillance software is unacceptable,” the letter said.
The coalition said it was concerned that it appeared the FBI failed to follow its own guidelines for such activity, and did not make clear to the judge who signed the warrant or to FBI counsel that it intended to impersonate a media organization “or that there were First Amendment concerns at stake.”
“We therefore urge the Attorney General and FBI to clarify that impersonation of the media is unacceptable, whether it is digital or physical, and whether it is of the individual or of an organization,” the news organizations wrote.