Internal Report Says DOJ Did Nothing Wrong Targeting Journalists' Communications To Hunt Down Leakers

from the first-step-is-forgiving-yourself-I-guess dept

The DOJ's current prosecution of Julian Assange threatens the profession of journalism. By turning cultivating sources and publishing classified documents into acts of treason, the DOJ is undermining protections supposedly guaranteed by the First Amendment and shored up by years of case law.

But the DOJ has been undermining these protections for years. Six years ago, news surfaced that the DOJ had issued 30 subpoenas for AP journalists' phone records. The fallout from this continues, which includes the DOJ modifying (very slightly) its rules for obtaining journalists' communication records.

When it comes to leak investigations, all bets -- and all Constitutional protections -- are off, apparently. The rules have exceptions and justifications to allow the DOJ to do what it wants to do anyway: spy on journalists until it can find the leak source. A new Office of Professional Responsibility report obtained by the Freedom of the Press Foundation FOIA request shows the DOJ convincing itself that threatening press freedoms is a responsible use of its powers.

The report is... important for what it tells us about the Justice Department’s Media Guidelines. Specifically, the report shows how weak the guidelines are, and how, in practice, the rules may offer little protection to journalists worried about being caught up in a criminal investigation. Although the guidelines have been revised since the AP subpoenas controversy, several of its standards remain intact. Among these is the requirement that proposed subpoenas be “narrowly drawn.”

While substantial portions of the Office of Professional Responsibility’s analysis are redacted, its finding that the AP subpoenas were “as narrowly drawn as possible” appears to have hinged on the perceived seriousness of the leak; the decision not to subpoena the telephone records for employees at the Post, the Times, and ABC News; the inability of investigators to determine to which AP reporter or editor the leaker had provided classified information; and “perhaps most importantly” the fact “the subpoenas requested the records for—and not the contents of—telephonic communications.”

The report [PDF] shows more than that, though. It shows the DOJ also thought about subpoenaing records from several other news agencies, including the Washington Post and New York Times. It shows the DOJ believed its failure to locate the source of the leak using other means and methods justified targeting phone lines used by journalists. And its subpoenas didn't cover individual desks. The 30 subpoenas targeted multiple AP offices, starting with their trunk lines. Although the DOJ was only seeking info about communications with seven journalists, it decided the most efficient way to do this was to scrape phone records from the trunk, capturing every call made to and from these offices for over a month.

Ultimately, the report finds the DOJ did nothing wrong. It acknowledges the First Amendment concerns but says any collateral damage was necessary to find the source of the leak. And it will continue to do this if it feels the collateral damage to free speech protections is worth it. That appears to be almost any case where the DOJ's internal investigation of leaks reaches a dead end. Rather than redouble its internal efforts, it will target journalists' communication records.

This was always concerning. President Obama waged a war on whistleblowers, making it far more likely journalists -- those often on the receiving end of whistleblowing -- would be targeted by the federal government. This war hasn't ended. It has only intensified. President Trump's DOJ is fighting it own war on leaks, and that effort is coupled with Trump's open disdain for several news organizations. The DOJ has already justified its past abuses. It won't find it too hard to sleep at night going forward.

Filed Under: 1st amendment, 4th amendment, communications, doj, foia, journalists, phone records, subpoenas, warrants
Companies: associated press

Mexican Government Pitched In To Help The CBP Spy On Journalists, Activists, And Lawyers

from the odd-coupling dept

The CBP has an unlikely partner in its surveillance of journalists, activists, and lawyers: the Mexican government. It's not going to pay for The Wall™, but it's apparently willing to help out in other ways.

A government review of how journalists, attorneys, immigration advocates, and activists were monitored and tracked by U.S. border agencies confirms the Mexican government had a major role in the controversial tracking program.

In a letter dated May 9, 2019, Randy Howe, Executive Director of Field Operations for U.S. Customs and Border Protection (CBP) notes that “...CBP partnered with the Government of Mexico [to] address developing threats…” posed by the Central American Migrant caravan.

“A number of journalists and photographers were identified by Mexican Federal Police as possibly assisting migrants in crossing the border illegally and/or as having some level of participation in the violent incursion events,” CBP’s letter states.

Mexican government officials originally stated the government was not involved in this controversial surveillance. These assertions have been undercut by a statement written in response to a letter from a coalition of press outfits and rights groups demanding to know why the CBP and DHS were adding First Amendment violations to their long list of Fourth and Fifth Amendment violations.

Here's the Mexican government's original statement, which has suddenly aged very badly.

“The government of Mexico disapproves of all acts of illegal espionage against any person, domestic or foreign. The Mexican government does not conduct illegal surveillance on anyone, for any type or category of activity,” a statement read.

I guess it all depends on how you define "illegal." Or "surveillance." Maybe the federal police limited themselves to adding people to the CBP's watchlist. Perhaps this sort of surveillance isn't illegal in Mexico. But it's definitely on the illegal side here in the United States. If it's not a legal issue on the other side of the border, then the CBP and DHS are basically using a foreign government to engage in surveillance they're not allowed to perform on this side of the fence.

It doesn't appear the CBP and DHS are all that concerned about the possible Constitutional violations they're engaged in themselves. The letter the CVP sent says the agency was only trying to round up people trying to assist migrants in crossing the border illegally, which somehow included journalists covering the border caravans and immigration lawyers trying to help people through the asylum process.

The CBP does admit it will periodically violate Constitutional rights, but it claims these violations are only minor speed bumps on the road of American life.

Occasionally, CBP may inconvenience law-abiding persons in our effort to detect, deter, and mitigate threats to our homeland.

Well, I'm glad that's all cleared up. The CBP does not engage in illegal surveillance (except when it does) and does not target protected First Amendment activities (except those occurring near the border) and only in the interest of national security does it ignore rights guaranteed by the Constitution of the United States. And it's doing all this with a foreign government's help -- a government that denied it had anything to do with this surveillance when first asked about its involvement.

Filed Under: activists, cbp, journalists, mexico, spying, surveillance

It Sure Sounds Like Elizabeth Warren Wants To Bring The EU Copyright Directive Stateside

from the maybe-think-on-that-a-bit-more dept

Last week we wrote a critical analysis of Elizabeth Warren's big plan to break up "big tech." As we noted, there was a lot in the plan that was nonsensical, unsupported by the facts or just plain confused. We'll be talking more about some of these ideas a lot over the next few years I imagine (stay tuned), but there was one line in Warren's plan that deserved a separate post: it appears that a part of Warren's big attack on big tech... is to give a massive handout to Hollywood. Here's the line:

We must help America’s content creators — from local newspapers and national magazines to comedians and musicians — keep more of the value their content generates, rather than seeing it scooped up by companies like Google and Facebook.

That may sound rather basic and lacking any details, but what's notable about it is that the language reflects -- almost exactly -- the language used in the EU in support of the absolute worst parts of the EU Copyright Directive (specifically, Article 11 and Article 13). For example, this Q & A page by the Legislative Affairs Committee of the EU Parliament uses quite similar language:

The draft directive intends to oblige giant internet platforms and news aggregators (like YouTube or GoogleNews) to pay content creators (artists/musicians/actors and news houses and their journalists) what they truly owe them;

Why, that sounds quite familiar. Indeed, Warren's announcement even uses "keep more of the value their content generates," which appears to be a reference to the completely made up notion of a "value gap" between what internet platforms make and what they should be paying artists.

It's no secret, of course, that those pushing strongest for Articles 11 and 13 plan to bring them to the US as soon as possible. Indeed, that's why we pointed out that it is quite important for Americans to pay attention to what's happening there -- as it's likely to follow across the Atlantic before too long. The fact that a leading Presidential candidate is already mimicking the language of such controversial European legislation is quite amazing, and suggests a Warren campaign that is very out of touch with what people actually want from their internet.

It's also kind of odd for someone who paints themselves as a "progressive politician" who will stand up "against big business" to be hinting at policies that are obviously designed solely as a wealth transfer mechanism to the giant Hollywood studios, major record labels, and large newspaper publishers. It's difficult to square that position with helping the little guy.

Similarly, one of our big concerns with Articles 11 and 13 is that, by their very nature, they will increase the monopoly issue. They are rules that only make sense if you have a few giant companies on each side negotiating with one another -- rather than a large number of competitors, and a wide variety of independent creators. So, it's doubly bizarre that Warren would include this suggestion in her big post about how terrible monopolies are and how she needs to break up big tech. Copyright-directive style proposals won't do that. They'll simply reinforce the dominant position of the big companies by making it nearly impossible for startups to even enter the market.

Filed Under: antitrust, article 11, article 13, artists, break up big tech, content creators, copyright, elizabeth warren, journalists, value gap
Companies: facebook, google

CBP Put A Bunch Of Journalists, Immigration Lawyers, And Activists On A Secret Watchlist

from the fuck-the-Constitution-I-guess dept

Leaked documents obtained by an NBC affiliate show the government has taken a direct interest in journalists and activists covering the many, many happenings at our southern border. But the government isn't interested in keeping them safe or giving them the space to do their jobs. Nope, the CBP has been treating journalists like suspected criminals, hauling them in for hours of questioning and examining the contents of their phones and laptops.

Oh well. I guess the First Amendment had a good run.

Documents obtained by NBC 7 Investigates show the U.S. government created a secret database of activists, journalists, and social media influencers tied to the migrant caravan and in some cases, placed alerts on their passports.

[...]

One photojournalist said she was pulled into secondary inspections three times and asked questions about who she saw and photographed in Tijuana shelters. Another photojournalist said she spent 13 hours detained by Mexican authorities when she tried to cross the border into Mexico City. Eventually, she was denied entry into Mexico and sent back to the U.S.

The documents (which appear to be screenshots of the CBP database) show an extensive list of journalists and activists, along with notes stating whether or not the person was interviewed and/or placed on a CBP "alert" list. The surveillance of protected First Amendment activities is apparently part of the DHS's "Operation Secure Line," which monitored the caravan travelling through Mexico to the US border.

Here's who's on the list, according to NBC 7's investigation:

The individuals listed include ten journalists, seven of whom are U.S. citizens, a U.S. attorney, and 47 people from the U.S. and other countries, labeled as organizers, instigators or their roles “unknown.” The target list includes advocates from organizations like Border Angels and Pueblo Sin Frontera.

The CBP's first statement said this all just normal border-protecting stuff. According to its initial deflection, adding journalists and activists to watchlists that targeted them for enhanced screening and other unpleasantness is all part of the government's plan to address the multiple caravans headed for our borders. The CBP statement does not explain why targeting lawyers, activists, and journalists is considered an appropriate use of government resources. In fact, it doesn't attempt to address the database and its contents at all.

And it's not just secondary screenings and hours-long interviews of people engaging in protected speech. The DHS is apparently compiling entire dossiers about this group of targets -- none of which is suspected of participating in criminal behavior. According to a DHS source quoted in the article, the agency doesn't have the authority to compile information on people not suspected of criminal activity. As the unnamed person notes, DHS isn't an intelligence agency. It's a law enforcement agency.

CBP now appears to be in panic mode. An update added to the story indicates the agency is throwing any justification it can against the wall in hopes of something sticking.

Minutes after our story published and five days after a Customs and Border Protection spokesperson gave us the agency's statement above, CBP told our colleagues at NBC News that the names in the database are all people who were present during violence that broke out at the border in November. The agency also said journalists are being tracked so that the agency can learn more about what started that violence. CBP never clarified that point directly to NBC 7 Investigates.

Even this hasty course correction is a spectacular failure of logic. The CBP is investigating a confrontation at the border... by placing journalists, lawyers, and activists under surveillance? That makes no sense. The CBP can speak to these people without placing them on an alert list and subjecting them to enhanced screening and device searches. If the agency needs to interview witnesses, there are processes for that -- none of which look like an attempt to chill press freedom and pro-immigrant activism at the border.

Filed Under: activists, cbp, customs and border patrol, immigration, journalists, lawyers, watchlist

European Journalists Point Out That Article 11 Will Enrich Publishers At The Expense Of Journalists

from the this-is-not-helping dept

Promoters of the EU destructive copyright directive keep pushing the bogus line that it is necessary to give money to "artists and journalists." Take, for example, MEP Axel Voss (the EU Parliament member in charge of all of this nonsense) and his press release touting the final text:

Internet platforms face incentives to pay for artists and journalists’ work used

Except, actual journalists in the EU are realizing exactly what many of us have been talking about for months: nothing in the Directive will lead to more money for journalists. Instead, at best, it might lead to more money for publishers (though, even that is suspect, given the utter failure of similar plans already in place in Spain and Germany). While Voss's announcement claims that "Journalists must get a share of any copyright-related revenue obtained by their publishing house," journalists are pointing out that the opposite is actually true.

The International Federation of Journalists, along with the European Federations of Journalists put out a statement noting that Article 11 "makes a mockery" of their rights and will only serve to help publishers strip the journalists of their own rights:

While the directive acknowledges an obligation for journalists and all authors of the works incorporated in a press publication to receive an "appropriate share" of the revenues press publishers receive for the use of their publications online, it enables publishers to avoid such requirements by relying on existing "contractual arrangements" and "laws on ownership".

Such moves could deny journalists any revenue arising from the re-use of their work online.

These discriminatory provisions and proposals contained in Article 11 and Recital 35 of the text dash any hopes that the Directive would support authors in the press sector in obtaining fair and proportionate remuneration for their work under this law or in future national legislation. 

Instead they boost the system whereby powerful publishers force employed journalists and freelancers alike to sign contracts giving up all their rights – thereby offering them a proportionate or appropriate share of nothing

In short, the final text pays lip service to the idea that publishers should pass on money to journalists, but also provides a massive loophole in that all the publishers need to do is write this requirement out of any contract and not have to worry about it.

It appears that this kind of tactic is found throughout Articles 11 and 13. The text says you don't have to use filters, but provides no workable alternative. The text says that memes are allowed, but never explains how a site can comply with the law without blocking all memes. The text of the directive basically pays lip service to all the complaints and obvious consequences, but rather than deal with the consequences, it just says "and don't let those consequences happen." This is no way to make policy.

Filed Under: article 11, copyright, eu, eu copyright directive, journalism, journalists

Ex-NSA Personnel Spied On Americans And Journalists For The United Arab Emirates

from the all-the-'good-guys'-doing-all-the-bad-stuff dept

When former NSA employees and contractors decide to start working for a journalist-murdering authoritarian, they should feel sick. Instead, after targeting journalists, dissidents, and other people the United Arab Emirates government doesn't like, they felt exhilarated.

Working together with managers, Stroud helped create a policy for what to do when Raven swept up personal data belonging to Americans. The former NSA employees were instructed to mark that material for deletion. Other Raven operatives would also be notified so the American victims could be removed from future collection.

As time went on, Stroud noticed American data flagged for removal show up again and again in Raven’s NESA-controlled data stores.

Still, she found the work exhilarating. “It was incredible because there weren’t these limitations like there was at the NSA. There wasn’t that bullshit red tape,” she said. “I feel like we did a lot of good work on counterterrorism.”

That quote comes from a disturbing account of UAE "counterterrorism" work performed by a unit of Americans linked to the NSA published at Reuters. That "bullshit red tape" is, for the most part, known as the Constitution. The quote comes from Lori Stroud, who worked with a unit of hackers known as Project Raven, targeting whoever the UAE felt needed targeting. She is the only person from that unit willing to publicly-out her identity. Everyone else involved either spoke anonymously or refused to say anything at all. Here's the deafening silence that accompanied the Reuter's article:

An NSA spokesman declined to comment on Raven. An Apple spokeswoman declined to comment. A spokeswoman for UAE’s Ministry of Foreign Affairs declined to comment. The UAE’s Embassy in Washington and a spokesman for its National Media Council did not respond to requests for comment.

Lori Stroud's work with the NSA dates far enough back that it includes a stupendous irony: she recommended the NSA add Ed Snowden to her Booz Allen contracting team. A few months later, Snowden was gone, taking with him a pile of documents that Stroud's recommendation had helped him gain access to.

Hacking for the UAE meant hacking American targets and British journalists.

One of the program’s key targets in 2012 was Rori Donaghy, according to former Raven operatives and program documents. Donaghy, then 25, was a British journalist and activist who authored articles critical of the country’s human rights record. In 2012, he wrote an opinion piece for the Guardian criticizing the UAE government’s activist crackdown and warning that, if it continued, “those in power face an uncertain future.”

This is what counterterrorism looks like in UAE. This is what it can look like anywhere, once mission creep sets in and the government decides criticism is suspicious behavior. But this was done by US intelligence personnel who took better-paying offers to spy for a nation we somehow consider an ally, despite its stances on pretty much everything being antithetical to ours.

The quote opening this post was from the aftermath of an indiscriminate deployment of a virus that infected every visitor of a targeted Islamist forum. It swept up plenty of communications from Americans, but even with safeguards in place to remove inadvertent collections, it was clear UAE did not consider Americans' communications off-limits.

It should have. The UAE claims to be a partner in the War on Terror, citing its positive relationship with the United States as an intelligence partner. Even though Project Raven was run by the UAE using former US intel personnel, the NSA still was supposed to be notified before operation deployments or prior to presentations that might discuss classified techniques. What's published here shows either the NSA was cut out of the loop by UAE or that the NSA appears to have made no effort to keep tabs on operations run by its surveillance partner.

The UAE government took the project in-house, using a local tech contractor to create a company called DarkMatter that severed any ties the project might have with the US Intelligence Community. To their credit, at least eight former US intelligence analysts left when it became apparent targeting dissidents, journalists, and American citizens was going to be a large part of their work.

Lori Stroud eventually realized targeting Americans was a feature, not a bug.

When she questioned the apparent targeting of Americans, she received a rebuke from an Emirati colleague for accessing the targeting list, the emails show. The target requests she viewed were to be processed by “certain people. You are not one of them,” the Emirati officer wrote.

Days later, Stroud said she came upon three more American names on the hidden targeting queue.

Those names were in a category she hadn’t seen before: the “white category” — for Americans. This time, she said, the occupations were listed: journalist.

“I was sick to my stomach,” she said. “It kind of hit me at that macro level realizing there was a whole category for U.S. persons on this program.”

But sick or not, it was the UAE government that removed her from DarkMatter, terminating her employment when she kept objecting to the targeting of Americans. She was met by the FBI when she returned to the US. The entire operation is now under FBI investigation, but not necessarily for the illegal targeting of Americans. The FBI appears to be more concerned about possible leaks of classified surveillance techniques. It also wants to know if any US "systems" were targeted, suggesting it will be looking at attacks against US government entities and domestic corporations. It appears spying on journalists and Americans isn't worthy of an investigation.

Filed Under: journalists, lori stroud, mercenaries, nsa, project raven, surveillance, uae, united arab emirates
Companies: darkmatter

NY Governor Offers Journalists A Gift No Journalist Would Be Interested In Receiving

from the stop-trying-to-help dept

File under: Things No One Asked For

In case you can't read/see the tweet, it's New York governor Andrew Cuomo threatening to enact a #JournalistsLivesMatter law -- something no journalist has ever suggested they might want.

Let’s make assaulting the press a felony in New York State. Last year saw heinous and deadly attacks against members of the press, journalists must be protected from the threat of physical harm for just for doing their jobs.

While it's refreshing to see a political figure think someone other than law enforcement might need a little extra protection, sentencing enhancements that only apply when certain people are assaulted or killed is never the answer. The state already has a law against assaulting journalists. It's called assault. And in certain cases, it can be felony. (Which, ironically enough, happens anytime anyone assaults a cop in New York.)

There's no reason for journalists to be afforded extra protections just because of their job. If it doesn't make sense for cops, it doesn't make sense for journalists. A profession is not a race, gender, or religious persuasion. Hate crime laws make very little sense themselves, but at least they address the fact people may be targeted for aspects about themselves they have no control over. Journalists and cops don't need to be journalists and cops. A person's race is not a choice and they can be targeted for abuse and physical attacks simply for being the wrong color.

But there's a disturbing aspect to this proposal you won't find in Blue Lives Matter laws: the government gets to pick and choose who's a journalist. That's something we really don't want the government to be doing because it invites direct intervention in First Amendment protected activities.

We've already seen some legislators attempt to do this while pushing for shield laws. While it's a good idea to leave journalists unmolested by government agencies -- especially in light of Attorney General nominee William Barr's remarks during his confirmation hearing -- the laws allow the government to decide who's a journalist and who can be forced to turn over sources without repercussion.

Journalism is an action as much as it is a profession. WikiLeaks personnel should be eligible for shield law protections as should a local blogger who covers small town political issues. Anyone continuously pestering the government with FOIA requests is engaged in journalism, even if all they do is dump the documents in the public domain with a minimum of commentary. Shield laws -- and Cuomo's severe misreading of the room -- make journalism just a bit riskier by giving the government the power to decide who's qualified to bring you the news.

Filed Under: andrew cuomo, journalism, journalists, journalists lives matter, new york

Israeli Exploit Developer Caught Negotiating Spyware Sales With Saudi Government

from the got-'em-right-in-the-optics dept

More ugly news has surfaced about Israeli malware developer NSO Group. Over the past year, investigations have uncovered sales of phone-targeting spyware to countries known mostly for their human rights violations. Even less questionable governments have purchased NSO's software ostensibly for law enforcement purposes only to use it to target activists, journalists, and government critics.

There's no telling how US agencies will deploy this malware, but there's no question federal entities like the DEA think NSO spyware would be a useful addition to their investigative tool kits. The US government doesn't appear to be worried about getting in bed with tech companies willing to sell software to blacklisted countries, so NSO Group is still a viable option.

Haaretz has obtained information showing NSO is willing to sell its exploits to its own enemies. Unfortunately, Haaretz has also decided to paywall its discovery, so we'll be pointing you to the Times of Israel's reporting instead.

An Israeli company that specializes in cyber espionage tools reportedly negotiated a multi-million-dollar deal with Saudi Arabia to sell a technology that allows governments to hack their citizens’ cellphones, and to listen to calls as well as conversations that take place near the phones.

Representatives from the Herzliya-based NSO Group held meetings with Saudi officials in Vienna and, apparently, also in a Gulf State to negotiate a $55 million sale of their Pegasus 3 software, the Haaretz daily reported on Sunday.

These negotiations occurred shortly before Mohammed bin Salman kicked his purge machinery into high gear. Unfortunately, the documents (which surfaced due to a lawsuit filed against NSO by an employee who says the company screwed him on commissions) don't say whether or not the Saudi government chose to purchase this software and/or whether it was used to help MBS hunt down his political opponents.

From what has been seen, NSO tried to play it both ways while negotiating a deal with the Saudis. It refused to identify the person behind an anti-government Twitter account but did offer to demonstrate the effectiveness of tools designed to hijack targets' cellphones.

In response to the recent stream of criticism, NSO Group also tried to have it both ways:

The NSO Group has insisted in the past that it sells its software to clients on the condition that it be used only against crime and terrorism, and has shirked responsibility in cases where it was allegedly used for civil rights abuses.

"We made them promise to only use the tools for good" is a pretty weak defense of sales to countries like Uzbekistan and Kazakhstan. And it certainly doesn't excuse approaching the Saudi government with tools NSO certainly knew would not be used for good. Then again, our president just made it clear no amount of murdered journalists is going to stand in the way of selling weapons to Mohammed bin Salman's government, so there's really no taking the high road in international relations should it be discovered the Saudi government is using Israeli tools to hunt down dissenters… or Israeli natsec personnel.

Filed Under: espionage, exploits, israel, jamal khashoggi, journalists, mohammed bin salman, saudi arabia, spying
Companies: nso group

FBI Releases Guidelines On Impersonating Journalists, Seems Unworried About Its Impact On Actual Journalists

from the whatever.-at-least-it's-not-harming-investigations.-yet. dept

The FBI's impersonation of journalists raised questions about its investigative activities, none of which the FBI felt like addressing. An Inspector General's investigation of FBI investigations using this tactic found that it was generally a bad idea, but not an illegal or unconstitutional one. Prior to the investigation, the FBI apparently had no clear policies governing this form of impersonation, which it used to snare a school-bombing suspect.

Following the report, a policy was put in place that added some additional layers of oversight but didn't indicate the obvious downside of impersonating journalists: that the people the FBI wants to investigate are going to do a lot less talking to anyone they don't know, which includes journalists attempting to document newsworthy events that might contain criminal activity.

The FBI blew it with one of its other impersonation efforts. As Camille Fassett reports for the Freedom of the Press Foundation, a more recent effort may have put a serious damper on its fake news(person) efforts.

In an even more disturbing incident in 2015, FBI posed as a documentary filmmaker crew in order to gain the trust of a group of ranchers engaged in an armed standoff with the government. The fake crew recorded hundreds of hours of video and audio and spent months with the ranchers pretending to make a documentary.

The FBI tacitly acknowledged these efforts are great for the short-term, but ultimately harmful to the FBI in the long-term. Notably, it's not because they have a chilling effect on press freedoms, but rather because they undermine trust in the entities the FBI wants to impersonate.

The FBI’s own arguments in the case acknowledge the chilling effect on journalism presented by this tactic. In a motion of summary judgment obtained by Freedom of the Press Foundation, the agency argued that it should not be required to disclose details about other instances of media impersonation, on the grounds that “it would allow criminals to judge whether they should completely avoid any contacts with documentary film crews, rendering the investigative technique ineffective.”

The Reporters Committee for Freedom of the Press has obtained the FBI's guidelines [PDF] for undercover efforts that involve impersonating journalists. They indicate there are several levels of approval needed, but don't contain details about what's considered by those making these determinations.

The relevant FBI field office must submit an application to the Undercover Review Committee at FBI headquarters and it must be approved by the FBI Deputy Director after consultation with the Deputy Attorney General. The guidelines do not provide any criteria the FBI Deputy Director and/or the Deputy Attorney General must consider when approving these undercover activities.

All well and good, but one wonders how high the potential impact on civil liberties rates on the scale of 0-Impersonation, or whether it's more important the agency doesn't undermine future investigations by setting fire to the reputation of the impersonated entities by opening the Adventurous Reporter dress-up kit once too often.

I don't believe the FBI doesn't care at all about the collateral damage. I'm just reasonably certain it's far more concerned about how often -- and how successfully -- it will be sued. Adding more layers of oversight won't necessarily steer agents away from questionable tactics, but it will make it more difficult for plaintiffs to show the FBI carelessly caused damage to their livelihoods by pretending to be the press.

Filed Under: fbi, impersonating journalists, impersonation, journalism, journalists