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Sunday, 25 December 2016 11:20

A Review of the FBI’s Impersonation of a Journalist in a Criminal Investigation Featured

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On Sunday, June 3, 2007 an unknown subject, later identified by the Federal Bureau of Investigation (FBI) as 15-year old high school student Charles Jenkins, sent an e-mail containing a bomb threat to numerous teachers and administrators of Timberline High School, near Seattle, Washington. The high school was evacuated the next day. Jenkins e-mailed bomb threats to the school every day of the next week, causing daily evacuations.
Jenkins used “proxy servers” located in Europe to send his e-mails in a manner that would hide his true location. As a result, local law enforcement officials were not able to identify or locate Jenkins and they requested assistance from the Northwest Cybercrime Task Force, which was supervised by the FBI’s Seattle Division. The FBI immediately opened an investigation.
FBI agents developed a plan to surreptitiously insert a computer program into Jenkins’s computer that would identify his true location. An FBI undercover agent posed as an editor for the Associated Press (AP) and contacted Jenkins through e-mail. During subsequent online communications, the undercover agent sent Jenkins links to a fake news article and photographs that had the computer program embedded within them. Jenkins activated the computer program when he clicked on the link to the photographs, thereby revealing Jenkins’s true location to the FBI.
FBI and local law enforcement agents subsequently arrested Jenkins and he confessed to e-mailing the bomb threats. On July 16, 2007 Jenkins pleaded guilty as a juvenile to several state felony offenses and was sentenced to 90 days of juvenile detention, 2 years of supervised release, 2 years of mental health counseling, and 2 years of probation with restrictions on internet and computer usage. Jenkins was also expelled from school.
The FBI did not publicize the assistance its agents provided local law enforcement. However, on July 18, 2007, 2 days after Jenkins pleaded guilty, the online technology news website Wired.Com released an article entitled “FBI’s Secret Spyware Tracks Down Teen Who Made Bomb Threats” that detailed the method by which the FBI identified Jenkins. Seven years later, on October 27, 2014, The Seattle Times released an article based upon e-mails obtained by the Electronic Frontier Foundation through a Freedom of Information Act request to the FBI. Those e-mails disclosed the fact that the FBI posed as a member of the news media when it contacted and then identified Jenkins as the author of the bomb threats.
On October 30, 2014, 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 its investigation of the bomb threats. In addition, several newspapers wrote articles questioning the tactics the FBI used to identify and arrest Jenkins.

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 Jenkins] was proper and appropriate under Justice Department and F.B.I. guidelines at the time” and that “today, 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.”
The same day, the Reporters Committee for Freedom of the Press (RCFP), on behalf of 25 other news organizations, wrote a letter to Comey and then-Attorney General Eric 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 are 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 Jenkins. 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.
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 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 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 that could have increased the level of approval required, a possibility the investigative team did not appear to fully consider.
On June 8, 2016, as we were finalizing this report, the FBI adopted a new interim policy 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). Under this new policy, FBI agents may only represent, pose, or claim to be members of the news media when authorized by the FBI Deputy Director, after consultation with the Deputy Attorney General, as part of an undercover operation reviewed by the Undercover Review Committee (UCRC). The policy expressly prohibits FBI employees from engaging in such activity if it is not part of an undercover operation. Therefore, the undercover activities in 2007 would be prohibited today unless they were part of an undercover operation reviewed by the UCRC and authorized by the FBI Deputy Director, after consultation with the Deputy Attorney General.
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.
Recommendation 1: The FBI should move expeditiously to update its undercover policy guide to incorporate the June 2016 interim policy on undercover activities in which FBI employees represent, pose, or claim to be members of the news media or a documentary film crew; and widely inform and educate FBI employees about the policy’s existence and application.
Recommendation 2: The FBI should consider the appropriate level of review required before FBI employees in a criminal investigation use the name of thirdparty organizations or businesses without their knowledge or consent.
Recommendation 3: The FBI should consider whether revisions to the USOPIG are required to ensure that undercover activity involving a significant risk that a subject believes he has entered into a privileged relationship with an undercover agent, is treated as a “sensitive circumstance.”

Office of the Inspector General
U.S. D.o.J.

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