Background


Executive Summary


Over the
course of 1 week in June 2007, a 15-year old high school student emailed a
series of bomb threats to administrators and staff at Timberline High School,
near Seattle, Washington. The threats caused daily school evacuations. The
individual used “proxy servers” to e-mail the bomb threats in order to hide his
location. When local law enforcement officials were unable to identify or
locate the individual, they requested assistance from a cybercrime task force
supervised by the Federal Bureau of Investigation’s (FBI) Seattle Field
Division.


FBI agents
on the task force, working with FBI technology and behavioral experts at
Headquarters (FBIHQ), developed a plan to surreptitiously insert a computer
program into the individual’s computer that would identify his location. An FBI
undercover agent posed as an editor for the Associated Press (AP) and attempted
to contact the individual through e-mail. During subsequent online
communications, the undercover agent sent the individual links to a fake news
article and photographs that had the computer program concealed within them.


The
individual activated the computer program when he clicked on the link to the
photographs, thereby revealing his location to the FBI. FBI and local law
enforcement agents subsequently arrested the individual and he confessed to
emailing the bomb threats.


The FBI did
not publicize the assistance its agents provided local law enforcement.
However, on July 18, 2007, 2 days after the individual pleaded guilty, an
online technology news website published an article that detailed the method by
which the FBI identified the individual. Seven years later, in October 2014,
The Seattle Times published an article that disclosed the fact that an FBI
employee posed as a member of the news media when it contacted and then
identified the subject as the author of the bomb threats.


Later that
same month the AP sent a letter to then-Attorney General Eric Holder protesting
the FBI’s impersonation of a member of the news media in connection with the
FBI’s investigation of the bomb threats. In addition, several newspapers wrote
articles questioning the tactics the FBI used to identify and arrest the
subject who sent the threats.


One week
later, on November 6, 2014, FBI Director James Comey wrote a letter to the
editor of The New York Times defending the FBI’s actions. In particular, Comey
stated that the “technique [the FBI used to identify and apprehend the
individual who sent the threats] was proper and appropriate under Justice
Department and F.B.I. guidelines at the time” and that “[t]oday, 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.”


That same
day, the Reporters Committee for Freedom of the Press, on behalf of 25 other
news organizations, wrote a letter to Comey and Holder voicing its objection to
the practice of FBI agents impersonating journalists, saying the practice
endangers the media’s credibility and undermines its independence, and that it
appeared to violate FBI guidelines for when such tactics were permissible.


We initiated
this review to examine whether under Department of Justice and FBI policies in
effect at the time of the 2007 investigation, agents obtained the appropriate
approval for the undercover activities the FBI conducted to locate the
individual e-mailing the bomb threats. We also examined whether the undercover
activities in 2007 would require a higher level of approval if conducted today
under current Department and FBI polices.


As described
in our full report, we concluded that FBI policies in 2007 did not expressly
address the tactic of agents impersonating journalists. We further found that
the FBI’s undercover policies then in effect provided some relevant guidance,
but were less than clear. As a result, we believe that the judgments agents
made about aspects of the planned undercover activity in 2007 to pose as an
editor for the AP did not violate the undercover policies in place at the time.


We also
determined that once the undercover plan was launched, certain investigative
decisions were made concerning communications the undercover agent sent to the
individual suspected of making the bomb threats that could have increased the
level of approval required under FBI policy, a possibility the investigative
team did not appear to fully consider. As we were finalizing this report, the
FBI adopted a new interim policy in June 2016 that provides guidance to FBI
employees regarding their impersonation of members of the news media during
undercover activity or an undercover operation (defined as a series of related
undercover activities over a period of time). We found that prior to the
adoption of this new interim policy, FBI policy would not have prohibited FBI
employees from engaging in the undercover activities agents conducted during
the 2007 Timberline investigation.


The new
interim policy, however, clearly prohibits FBI employees from engaging in
undercover activity in which they represent, pose, or claim to be members of
the news media, unless the activity is authorized as part of an undercover
operation. In order for such an operation to be authorized, an application must
first be approved by the head of the FBI field office submitting the
application to FBIHQ, reviewed by the Undercover Review Committee at FBIHQ, and
approved by the Deputy Director, after consultation with the Deputy Attorney
General.


We believe
the FBI’s new interim policy is a significant improvement to policies that
existed in 2007 during the Timberline investigation, as well as to those
policies that would have governed similar undercover activities prior to June
2016. The new interim policy also is an important extension of policies the
Department of Justice has previously implemented to regulate certain law
enforcement activities that affect members of the news media, such as obtaining
information from or about members of the news media in criminal and civil
investigations.


The FBI
should move expeditiously to update its undercover policy guide to incorporate
this new interim policy, and widely inform and educate FBI employees about the
policy’s existence and application. Based upon our review, we made three
recommendations to help ensure that FBI policies governing certain undercover
activities and operations are well known, clear, and understood. The FBI
concurred with the recommendations.


Download the Report



 A Review of
the FBI’s Impersonation of a Journalist in a Criminal Investigation, September
2016
 [30 Pages, 0.7MB]

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