Many of you probably saw recent stories about how, back in 2007, the FBI created a fake website with a fake Associated Press news story to lure an individual suspected of calling in bomb threats to Seattle area high schools. You might have been outraged that the FBI would impersonate a news publication by sending a link with a fake story to the studentâ€™s MySpace page in order to deliver malware that would confirm his identity and location. Thatâ€™s why AAN joined approximately twenty media organizations and companies on a letter to Attorney General Eric Holder and FBI Director James Comey objecting to various aspects of the DOJâ€™s and FBIâ€™s actions.
The letter drafted by the Reporters Committee for Freedom of the Press criticizes not only the endeavor itself but the agencyâ€™s withholding of information in the face of questions about its actions. Though the Associated Press has already lodged a public protest with the FBI we wanted to raise additional points, including:
- The need for a full release of FBI records relating to this matter, because the FBIâ€™s statements (before and upon being caught) contradict records that have been released in response to FOIA requests.
- The inexcusable nature of the FBIâ€™s failure to comply with its own guidelines and the Attorney Generalâ€™s guidelines regarding news media impersonation. Each entity has some guidance available in this area. Each entity requires review and approval before an FBI agent may impersonate a member of the news media in light of the important First Amendment interests in play. But none of these seemed to be followed here. The FBI didnâ€™t tell the issuing judge that it planned to attract the suspected bomber via the use of a fake news website. It doesnâ€™t even appear that the approving attorney from the DOJ itself was told of this delivery method.
- There doesnâ€™t appear to have been any internal review of this plan, despite the existence of the Attorney Generalâ€™s Guidelines on Undercover and Sensitive Operations which requires an â€œUndercover Review Committeeâ€ to review any operation involving sensitive circumstances, including impersonation of the news media.
- The need for the Attorney General and FBI to clarify that impersonation of the news media in any way is unacceptable. Even had all the proper procedures been followed, the use of the â€œnews media as a cover for delivery of electronic surveillance software is unacceptableâ€, as it endangers the mediaâ€™s credibility and undermines its ability to independently report on law enforcement.
Please do not hesitate to contact AAN Legal Counsel Kevin M. Goldberg at goldberg[at]fhhlaw.com or 703-812-0462 if you have any questions.