emptywheel

FBI can’t pretend to be the AP without special approval. They can pretend to be Apple.

As a number of outlets have reported, the DOJ IG just released a report on FBI’s impersonation of a journalist in 2007. The FBI pretended to be the AP to catch a high school student making bomb threats.

As I will explain in more detail in a follow-up post, the IG report somewhat exonerated the Agents who engaged in that effort. It also gives reserved approval of an interim policy FBI adopted this June (that is, well after the press complained, and just as the IG was finishing this report) that would prevent the FBI from pulling a similar stunt without higher level approval.

But some of the details in the report — as well as one of its recommendations — suggests that the FBI would still be able to pretend to be a software company making a software update. Here’s the recommendation.

Recommendation 2: The FBI should consider the appropriate level of review required before FBI employees in a criminal investigation use the name of third party organizations or businesses without their knowledge or consent.

As the report explains, this concern arises because FBI policies on undercover activities distinguishes between impersonating a biological person and a corporate one.

Finally, as we described in Section III of this report, we learned during the course of this review that while FBIHQ approval is required to use a third person’s “online identity” in undercover online communications or to make “untrue representations . . . concerning the activities or involvement of any third person” without that person’s knowledge or consent, special approval was not required to use the identity of an organization or business in undercover online communications or in other undercover activities. The new interim policy changes that policy as it relates to news organizations, but does not address this issue with regard to non-news organizations or businesses. We think the Department should consider the appropriate level of review necessary before agents in a criminal investigation are allowed to use the name of a third-party organization or business without its knowledge or consent, in light of the potential impact that use might have on the third party’s reputation.30

30 After reviewing a draft of this report, the FBI provided comments explaining that the heightened level of review and approval required for FBI employees to pose as members of the news media was introduced because such activity potentially could “impair news-gathering activities” under the First Amendment, but that such constitutional considerations do not apply to businesses and other third parties. Our recommendation, however, does not rely on equating the reputational interests of some third party organizations and businesses with the constitutional interests of others. We believe that reputational interests, and the potential impact FBI investigations can have on those interests, are themselves sufficiently important to merit some level of review before FBI employees use the names of third party organizations or businesses without their knowledge or consent. [my emphasis]

The new policy requires additional approvals before the FBI can pretend to be a news-gathering organization, but only requires that higher approval for news-gathering organizations, not other corporate entities.

In other words, FBI is only imposing these new restrictions because by pretending to be a journalist, it might impair the news-gathering activities under the First Amendment. But the FBI doesn’t care about the reputational harm that its undercover activities might do to non news media corporations.

And there’s nothing here that would prohibit the FBI to engage in the most obvious undercover activity to accomplish the same objective they had in the bomb threat case: to get someone to click a link that would, unbeknownst to the target, infect their computer with malware.

In other words, by all appearances, the FBI can’t infect you with malware by pretending they want to interview you, but they could infect you with malware by pretending they want to update your software.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. arbusto says:

    OT I’m getting a 418k download since 9/14 PM each time I go to emptywheel.net, either on Chrome (SRware) or Opera. If I do a google search, then click on ew.net, no download or if I use full url w/http://. Confused.

    • P J Evans says:

      I was getting a notice about a file with a php extension, but I assumed that it was something to do with a misconfigured post or something being down.

    • martin says:

      quote””So…. what should we do about it? Refuse to accept updates?”unquote

      hAHAHAHAHAHA! Says Mr. Clueless who couldn’t fathom spending his days weaving wattle and daub to save his sanity, notwithstanding sharpening a dozen framing chisels to begin claiming his place on the planet. You’re pathetic. btw you moron.. there are human beings out on the face of this planet, spending every single waking moment of their lives, finding their meaning, while YOU, wait for an.. ahem.. digital update to your pathetic reason for being alive.. fuck you, and fuck every single pathetic halfwit on this planet basing their lives on the Internet of Everything. Meanwhile.. try to build a foundation for your future out of 1’s and 0’s.

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