Balancing Technology & Ingenuity with Guideline Compliance
The journalism community is aggrieved after the U.S. Justice Department’s inspector general cleared an FBI agent of wrongdoing for impersonating a journalist in 2007 to solve a case.
The case, known as the Timberline investigation, involved repeated bomb threats to a high school in Seattle, where the Seattle police determined it was necessary to contact the Northwest Cybercrime Task Force for help.
According to the IG’s report, the investigative team involved in this case drafted a fake news article with an Associated Press byline, hoping to get the subject to click on the link and deploy a Computer and Internet Protocol Address Verifier (CIPAV) into the subject’s computer to allow the FBI to identify the computer and/or user of the computer. The agent was cleared, as the policies in effect in 2007 did not prohibit agents from impersonating journalists or from posing as a member of the news organization. Furthermore, there was no requirement that agents seek special approval to engage in such undercover activities.
While impersonating a member of the press potentially implicates First Amendment concerns, with journalists fearing sources to be less likely to share information if sources believe they may be sharing information with FBI agents as journalists, the FBI adopted a new interim policy in June 2016. The new policy clearly prohibits FBI employees from engaging in an 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 the operation to be authorized, the undercover application must first be approved by the head of the FBI field office submitting the application to FBI HQ, reviewed by the Undercover Review Committee at FBI HQ, and approved by the Deputy Director, after consultation with the Deputy Attorney General.
The need for agents to balance compliance with agency guidelines and the need to quickly apprehend a suspect threatening harm, especially involving innocent children, and/or the possibilities of mass casualties, may seem insurmountable. Moreover, the lack of ingenuity or expediency, would certainly have resulted in media attention and public scrutiny, should the outcome of the event not been a positive one.
In this complicated world we live in, actions that may seem justified can appear improper when placed under a microscope. The use of ever changing technology and ingenuity, if at all questionable or untested, should be run by your SAC/ASAC, AUSA, and or/other hierarchy involved in the case. And remember to protect yourself with Professional Liability Insurance (PLI), FEDS PLI provides you with your own personal attorney to defend against decisions and actions made within the course of your employment.
It is important to know that FEDS will begin advocating on your behalf immediately. We do not wait for DOJ to make a determination of scope or interest before we get involved. To learn more or to enroll, call 866.955.FEDS or visit fedsprotection.com.
FEDS provides professional liability insurance for the entire federal law enforcement community. For information on your specific exposures, how professional liability insurance protects, or how the FEDS program differs from other insurance programs, visit us on the web at fedsprotection.com and choose the position or agency that best describes your job and professional responsibilities.