Newly public Federal Bureau of Investigation (FBI) documents outline for the first time the specifics of the agency’s guidelines for impersonating members of the news media in undercover activities and operations. The records detail, among other things, that such activities require high-level approval from within the FBI and Justice Department. The FBI released the guidelines after the Reporters Committee for Freedom of the Press filed a Freedom of Information Act (FOIA) lawsuit when the agency failed to respond to a request for records about its impersonation of documentary filmmakers, specifically. Additionally, records recently released in connection with a separate FOIA lawsuit filed by the Reporters Committee show that the FBI has engaged in the impersonation of documentary filmmakers on a number of occasions, though questions remain as to just how frequently the FBI relies on this tactic.
The FBI has engaged in the undercover impersonation of members of the news media for decades, but controversy surrounding the practice was amplified in 2015 after it was revealed that the agency created a fake news article attributed to the Associated Press (AP) during the course of its June 2007 investigation of a student suspected of sending bomb threats to his high school outside Seattle, Washington. The revelation sparked an outcry from the press and public, including inquiries from high-ranking members of Congress who expressed concern that the impersonation of journalists undermines the credibility and independence of those reporting on matters of significant public importance.
In defense of the practice, then-FBI Director James Comey submitted a letter to the editor to The New York Times acknowledging the tactic and stating that the FBI’s impersonation of an AP journalist in the Seattle investigation “was proper and appropriate[.]” The controversy also led the Justice Department’s Office of the Inspector General to investigate the FBI’s use of media impersonation in the Seattle investigation. In September 2016, the office issued a formal report noting that the FBI had prepared new guidelines setting forth “approval levels for sensitive circumstances specifically in situations in which [FBI] employees represent, pose, or claim to be members of the news media or a documentary film crew.”
The guidelines obtained by the Reporters Committee detail that approval process: 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.
The guidelines also define an “undercover activity” as any investigative activity involving the use of an assumed identity by an undercover employee, and an “undercover operation” as one that involves a “series of related undercover activities” — defined as five or more substantive contacts by an undercover employee with the individuals under investigation — over a period of time.
Though the FBI has repeatedly disclosed that its agents have impersonated members of the news media to further their investigations, important questions remain about how often this practice is used. Reporters Committee attorneys are currently involved in two matters seeking more information about the FBI’s use of media impersonation.
The Reporters Committee scored an important victory late last year when the U.S. Court of Appeals for the District of Columbia held that the FBI had failed to sufficiently search for records responsive to FOIA requests made by the Reporters Committee and the AP. The case is currently on remand to the district court, where the FBI has produced records that make clear that the FBI has engaged in the impersonation of members of the news media — including documentary filmmakers — in criminal investigations on multiple occasions. In released emails, FBI employees question whether the agency’s new policies regarding impersonation of members of the news media “apply only to future [undercover operations], or apply retroactively to ongoing [undercover operations] that have already been approved with the documentary film crew scenario?” Similarly, another released email notes the existence of “a number of communications to HQ components and the field in 2016 regarding the use of ‘documentary’ and similar type scenarios in undercover operations.”
Most recently, the Reporters Committee sued the Justice Department and the FBI after the agencies failed to respond to a FOIA request for records related to the FBI’s impersonation of documentary filmmakers. The Reporters Committee filed the FOIA request after it was revealed in court that FBI agents posed as filmmakers in order to interview suspects as part of its investigation into a 2014 armed standoff between the Bureau of Land Management and supporters of cattle rancher Cliven Bundy, and used “professional credentials, websites and business cards” to lend their fake documentary film company — Longbow Productions — the appearance of authenticity.
In response to part of that FOIA request, the FBI has asserted what is known as a “Glomar” response, refusing to confirm or deny the existence of records related to other instances in which it has impersonated documentary filmmakers during the course of its investigations. In support of its argument, in a recent filing the FBI went so far as to argue that disclosing these records “would allow criminals to judge whether they should completely avoid any contacts with documentary film crews, rendering the investigative technique ineffective.”
In response, the Reporters Committee argued that this is precisely the reason why disclosure of information regarding FBI media impersonation is so important: this tactic has a chilling effect on journalists and documentary filmmakers, and sources are less likely to speak candidly to members of the news media if they think that the journalist is an agent of the government. Further, the Reporters Committee argues that the FBI cannot issue a Glomar response in this case because its practice of media impersonation is already well-known to the public and the FBI has already officially acknowledged the existence of these records — two standards the court will consider in evaluating whether the FBI’s Glomar response to part of the FOIA request was appropriate.
Along with the legal arguments in the case, the Reporters Committee submitted signed affidavits from two documentary filmmakers — David Byars and Abby Ellis — who explained how the FBI’s use of media impersonation has made it more difficult for them to do their jobs.
In particular, Ellis believes that “the FBI’s impersonation of a documentary film crew could have put [her] in danger,” and that “the FBI’s use of that tactic continues to jeopardize [her] safety, and the safety of other, real investigative filmmakers.”
The FBI has until Oct. 12 to respond to the Reporters Committee’s arguments.