The goal was laudable enough: Catch a hacker emailing bomb threats to an Olympia-area high school. And the FBI did get their man, er, boy. (The perp was a 15-year-old.)
That was in 2007, seven years ago, when a different sheriff was running the Department of Justice, the FBI’s parent organization, and a different political appointee was the U.S. Attorney for Western Washington, under a different administration of a different political party that apparently had a different view of boundaries.
But not until today did the world find out how the FBI nabbed the suspect. They planted spyware on the suspect’s computer. By impersonating the Seattle Times without the newspaper’s knowledge or permission.
The Seattle Times is outraged, and said so in a front-page story this morning. So is the ACLU. Other media outlets, such as Fox, are reporting the story factually for now.
The incident is reminiscent of a CIA operation in Pakistan several years ago that used a vaccination program as cover. The problem with that, of course, is that Pakistanis distrust vaccinations programs now. By impersonating public health workers, the CIA discredited public health programs, creating a serious public health problem.
The problem with law enforcement impersonating a newspaper is essentially the same: If you think the news page you’re viewing is a cop trying to collect information on you, you won’t trust it, and probably won’t read it. Once cops impersonate the Seattle Times, nobody can ever again be sure that what they’re looking at is the Seattle Times and not an FBI dummy site.
That undermines trust in journalists, not only by readers, but more importantly, by sources. What if not just the FBI, but all cop agencies, adopted this investigative technique, and not just to catch would-be school bombers, but also to catch government whistleblowers who rat out dishonest politicians or government agencies illegally spying on law abiding citizens?
Let’s imagine if an aggressive private business imitated the website of another business they know you patronize in order to plant spyware on your computer that collects highly detailed information about you and causes ads and sales messages to pop up at certain prompts. And why would it stop with a business trying to sell you something; if sellers can use this tactic to sell, why can’t debt collectors use it to track your financial activities, or lawyers use it to get information for use in litigation against you? Where does it stop?
If Company XYZ impersonated the Seattle Times to get into your computer, the Seattle Times could sue XYZ on multiple grounds, including misappropriation of intellectual property. Let’s briefly review what property is in Western law and culture. Basically, it’s a bundle of rights that includes the right to exclude others. This is what they teach to first-year law students in introductory property classes. Owning your house and yard means the public can’t go there. If someone steps on your lawn, you have the right to tell them to leave. If they don’t leave, you can ask the cops to arrest them for trespassing. Government will enforce these rights for you, and its promise to do so is one of the essential cornerstones of our social order and economy.
The same logic applies to intellectual property like trademarks and trade names. I can’t print a newspaper or publish a website and call it the Seattle Times, and neither can you. That trade name and trademark is already taken, and its owner has the right under our law to preclude you from using it, and can enforce that right in our courts. One of the law enforcement agencies that investigates trademark, patent, and other intellectual property infringements is the FBI.
There’s obviously a big problem with the FBI impersonating the Seattle Times to catch a crime suspect, however laudable the ends were. (Let’s turn this around for a moment. If you’re a journalist, and impersonate an FBI agent to get a story, see what happens to you.) The even bigger problem is that, even today, the FBI — through its official spokespeople — still see nothing wrong with it. They issued a statement trying to justify it. Their statement, of course, is couched with the language of protecting kids from school bombers. All well and good, we want the FBI and other cops to do that, and we all hope they’re successful. But …
How they do it matters. If the FBI wanted to impersonate the Seattle Times, and thought doing so was essential to their investigation, they should have asked the Seattle Times for permission. Of course, they wouldn’t have gotten it, which is why they didn’t ask. The Seattle Times could not, and I’m sure would not, have agreed to that. To lend their journalistic reputation to a law enforcement purpose, no matter how worthy, would have destroyed that reputation.
The folks over at the FBI need to sit down and conduct a thinking session about what they did. Because they appear to need some help with thinking about it, here’s what they did: They broke the law. They held themselves above the law. They violated private property rights. They misappropriated the trade name and infringed the trademark of a 100-year-old business. And they did it to a company whose business is gathering and reporting news, in a way that impairs its journalistic function. At a gut level, their actions were dishonest and lacked integrity. There’s more, but you get the idea.
And they call themselves cops? What kind of cops disrespect the law and private rights in this manner? If that’s the kind of cops we have in our country, then we need someone to save us from the cops.
Oh yeah, one more thing: This happened under a Republican administration, and we’re holding an election exactly one week from today that will determine whether Republicans take over Congress for the next two years — have you voted yet?