The FBI’s creation of a fake news story and impersonation of an Associated Press reporter during a criminal investigation undermine media credibility, blur the lines between law enforcement and the press and raise questions about whether the agency followed its own guidelines, free press advocates say.
In a letter to The New York Times on Thursday, FBI Director James Comey said an agent “portrayed himself as an employee of The Associated Press” in 2007 to help catch a 15-year-old suspect accused of making bomb threats at a high school near Olympia, Washington. It was publicized last week that the FBI forged an AP story during its investigation, but Comey’s letter revealed the agency went further and had an agent pretend to be a reporter for the wire service.
Comey said the agent posing as an AP reporter asked the suspect to review a fake AP article about threats and cyberattacks directed at the school, “to be sure that the anonymous suspect was portrayed fairly.”
The bogus article contained a software tool that could verify Internet addresses. The suspect clicked on a link, revealing his computer’s location and Internet address, which helped agents confirm his identity.
“That technique 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,” Comey wrote.
Kathleen Carroll, executive editor of the AP, said the FBI’s actions were “unacceptable.”
“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,” Carroll said in a statement.
In a letter to the Justice Department last week, the AP requested Holder’s word that the DOJ would never again misrepresent itself as the AP and asked for policies to ensure the DOJ does not further impersonate news organizations.
On Friday the Committee to Protect Journalists said in a statement it was “deeply concerned” by the FBI’s actions and called for a review of policies.
The Reporters Committee for Freedom of the Press, in its own letter on Thursday to Comey and Holder, asked the agency 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. “This practice endangers the media’s credibility and creates the appearance that it is not independent of the government. It undermines media organizations’ ability to independently report on law enforcement.”
The letter from the Reporters Committee for Freedom of the Press also said the FBI’s actions in the Washington state case appear to violate Department of Justice standards because there was not adequate review or disclosure about the ruse to the judge approving the warrant and FBI counsel.
“The failure to comply with the FBI and Attorney General’s own requirements regarding news media impersonation is inexcusable,” said the letter, which was co-signed by than two dozen organizations, including The New York Times Company, the Gannett Co., The Washington Post, The McClatchy Company and the American Society of News Editors.
Against the backdrop of Fast and Furious, a flawed ATF investigation in which guns were allowed to be transported across the border in hopes of tracking them in Mexico, the Justice Department last year provided new guidance to U.S. Attorneys’ offices about a prosecutor’s oversight of sensitive and undercover investigation – including evaluating whether the investigative tactics would affect public safety or yield useful evidence for a prosecution. That guidance has not been made public.
In his letter to The New York Times, Comey said all undercover operations involve deception, “which has long been a critical tool in fighting crime.”
He said no “actual story was published, and no one except the suspect interacted with the undercover `A.P.’ employee or saw the fake draft story. Only the suspect was fooled, and it led to his arrest and the end of a frightening period for a high school.”
Ryan Calo, a University of Washington law professor and expert in cyber law and privacy, said the FBI should’ve realized what they had done would eventually become known.
“It’s ironic that you think that impersonating the press wouldn’t make it into the press,” Calo said. “Whether or not it violates any law, to act as the FBI has done, it’s certainly ethically problematic and undermines faith in the press and of course the government itself.”
Comey said the FBI’s tactics are subject to “close oversight, both internally and by the courts that review our work.”