Last month, the Seattle Times reported the FBI created a fake Seattle Times web page to nab a 15-year-old kid who threatened to bomb a school, and expressed its outrage.
http://seattletimes.com/html/localnews/2024888170_fbinewspaper1xml.html
Yesterday, FBI director James Comey admitted in a letter to the New York Times that an FBI agent posed as an Associated Press reporter in the same investigation.
http://www.cbsnews.com/news/fbi-agent-impersonated-ap-reporter-during-criminal-probe/
The FBI used these ruses to identify and locate the hitherto anonymous suspect.
No one is against cops tracking down people who threaten to blow up schools. We want them to catch these people, and do it quickly before they can act. But.
The news media have a legitimate objection to the FBI’s tactics used in this case. Their job is to gather and report news, with an especial focus on wrongdoing by politicians and government. They often depend on anonymous sources. The willingness of these sources to talk to the press will be severely compromised if they don’t know whether they’re talking to a reporter or a cop.
I know of no law expressly prohibiting FBI agents or police investigators from posing as news reporters to solve crimes. But it’s a bad practice that should be avoided, because it impairs the newsgathering function of the media, which also vitally serves the public interest.
This incident occurred under the George W. Bush administration, which was guilty of many other bad practices and broad incompetence, so it’s not really all that surprising. And that administration is now history. Still, these news organizations should sue the FBI to prevent this case from becoming a precedent for other law enforcement agencies, and to discourage other government agencies from engaging in similar conduct.
Some people will find this hard to understand, because they look at is as good guys catching bad guys, and how can anyone criticize that?
From a legal perspective, the basis for the Seattle Times and Associated Press to sue the FBI is clear. The FBI used their trademarks, trade names, and business reputations without their knowledge or permission. This violated their property rights, and they’re entitled to injunctive relief and monetary damages for the same reason you would be if an FBI agent used your name, address, phone number, social security number, credit rating, and personal reputation to catch criminals. They don’t have a right to do that, and you don’t have to go along with it just because they’re cops trying to catch criminals. It’s still identity theft, and cops stealing your identity for a public safety makes it no less so.
Although the FBI didn’t steal the identity of a specific real reporter, they did steal the organizational identity of these news organizations, which is part and parcel the same thing. The objection is not to an FBI agent pretending to be a fictional reporter, but to using the identity of real news organizations to give credibility to the pose.
Suppose you own a business, and police routinely pretend to be your personnel to catch drug dealers, for example. What would that do to your business reputation? And what implications might that have for your personal safety? You don’t have to go along with that. Your identity and reputation are legally protectable; no one else has a right to use them for any purpose without your permission.
Whoever in the FBI authorized this operation exercised extraordinarily bad judgment. There ought to be accountability for that lapse, but there probably won’t be. That leaves a lawsuit by the media organizations whose rights were violated as the only way to discourage similar police misconduct in the future. This suit should be brought in a federal court, the judge should issue a blanket and continuing injunction against the FBI, and the court or a jury should award substantial money damages — something in excess of a million dollars, some amount that will put a dent in their budget, that will exact a real penalty from the agency. The ability of the press to act as a public watchdog over government is just too important to let this slide.