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Crime in the Suites An Analysis of Current Issues in White Collar Defense
November 13, 2014

Where to Draw the Line With Undercover FBI Operations

By: Nicole Kardell

Virus and hacking concept

Several news publications have been making much ado about a tactic the FBI used in 2007 to locate an individual suspected in a series of bomb-threats to Washington state high schools. The FBI created a fake news article, falsely representing it as an Associated Press publication, and sent a link to the suspect’s MySpace account. The article headline, which was directed at the suspect, was meant to entice him to go to the link. It worked. The suspect clicked on the link, which enabled the FBI to download malware on his computer and identify his location and Internet Protocol address. The suspect was subsequently arrested, charged and prosecuted in state court.

Newspapers and other media outlets have recently decried the FBI’s use of the AP’s name and brand recognition to further its purposes. The AP’s director of media relations noted in an October 2014 statement: “This ploy violated AP’s name and undermined AP’s credibility.” The Seattle Times complained that such action not only crosses the line, but erases it (the statement was made when the paper believed its publication was involved).  The controversy is somewhat understandable: journalists want to ensure their perceived independence; they don’t want to be seen as a tool of the powers that be.

But media concern over the FBI’s use of the AP name may be slightly overstated. The FBI did not publish the fake news article for broad dissemination. It directed the article to one suspect only. Nor is it exactly unprecedented for investigators to hold themselves out as something they are not in order to gain the trust of and nab wrongdoers. Should all cool teens (however they self-describe these days) complain that Narcs are undermining their reputation and street cred? Without these undercover operations, a major tool to FBI investigations would be lost, not to mention fodder for the popular television series that made Johnny Depp famous. FBI and other enforcement agencies regularly use deception to catch criminals. Everyone knows this, including the wrongdoers at whom deceptive practices are targeted.

Some argue that there is a colorable difference between impersonating a fake individual or persona and impersonating the press. If the impersonation were on a large scale and were relatively public, the deception would be problematic. People wouldn’t know what journalism was credible and what journalism wasn’t (not that this isn’t already a subject a some debate…).  But narrowly-focused operations directed exclusively at suspects who are the subject of a search warrant is a different scenario, and that’s the scenario that appears to be in play here. Where the FBI employs such tactics well enough into an investigation to support a search warrant, including having probable cause that the suspect is involved in criminal activity, using deception, which is an efficient way to locate the individual, doesn’t seem too alarming.

Of course, it is important to emphasize that legal process is everything. If the FBI were to disseminate fake news articles to gain computer access at the launch of an investigation, before it had a target, before it had probable cause, and before it had its actions approved judicially by a search warrant, such tactics would risk impacting innocent individuals and undermining news sources.