“Congress shall make no law … abridging the freedom of speech, or of the press.”
The First Amendment of the U.S. Constitution, as adopted in 1791.
Tough facts can make for difficult challenges to the law. A significant blow to the freedom of the press was recently delivered in a report released by the Justice Department’s Office of the Inspector General. The report endorsed the actions of FBI agents who used a claim of reportorial privilege as a weapon against a crime in progress. Not to give away the ending, but the crime was solved, and the dramatic circumstances under which the FBI circumvented, or at least diminished, constitutional press protections may have long-term ramifications for journalists. Let’s start with the facts:
On May 30, 2007, a handwritten bomb threat was found by the staff at Timberline High School in Lacey, Washington. The school was evacuated, local law enforcement conducted a thorough search and no bomb was found. On June 4, another bomb threat was received by the school in a message from a Gmail account that had been created under the name of a student, later found to be innocent. The message in the email was chilling: “I will be blowing up your school Monday, June 4, 2007. There are 4 bombs planted throughout Timberline High School. One in the math hall, library hall, main office and one portable. The bombs will go off in 5 minute intervals at 9:15 a.m.” The email also contained a threat that “[the school district’s email server] will be offline starting at 8:45 a.m.”
Once again, the school was evacuated and no bomb was found. The threat about the school district’s email server was real, as a fairly mild denial-of-service attack of one million packets an hour throttled the district’s system. The supposed bomber e-mailed a daily new false bomb threat for several days, each resulting in a school evacuation. Each threat was sent from a different, newly created Gmail account. The accounts were traced to Italy and the Czech Republic, but it was soon clear that the threats were being routed from overseas locations to confuse law enforcement. On June 7, the faux bomber expanded his threats to other social media, setting up a MySpace profile (Timberlinebombinfo) and sending “friend” requests to 33 classmates.
The FBI was involved by this time, and they needed a search warrant to get the additional evidence required to close the case. Rather than seeking to enter a residence and seize a computer or other documents, the affidavit requesting a warrant explained the FBI sought to conduct the search using software described as a “computer and internet protocol address verifier,” or CIPAV. This software would need to be placed in the suspect’s computer, and the FBI developed a plan to entice the suspect to let them in.
On June 13, the FBI executed the warrant by sending an email to the faux bomber. In the email, the agent identified himself as “Norm Weatherill,” an “AP Staff Publisher.” Initially, the only response from the bomber was, “Leave me alone.” Then the FBI stepped into uncharted and dangerous territory.
The agent replied: “I respect that you do not want to be bothered by the press. Please let me explain my actions. I am not trying to find out your true identity. As a member of the press, I would rather not know who you are, as writers are not allowed to reveal their sources. ... Readers find this type of story fascinating. People don’t understand your actions and we are left to guess what message you are trying to send.” The agent went on to demonstrate his press credentials by inviting the reader to check out his work at a — fake — Seattle Times site. When the faux bomber clicked on the faux link, the CIPAV was downloaded to his computer.
While the exact functions of, and results from, the CIPAV are not fully known, the search warrant affidavit claimed it would obtain an IP address, a list of running programs, operating system details, default internet browser, the registered user of the operating system, the current logged-in user name and a list of visited URLs. That was the FBI’s CIPAV capability in 2007; it is likely greatly enhanced today. With the information provided by the CIPAV, the FBI quickly closed the case. The 15-year-old culprit was a sophomore at the school who was expelled and sentenced to 90 days of juvenile detention and two years each of supervised release, mental health counseling and probation.
In a letter to The New York Times, FBI Director James Comey defended the fake-journalist ruse as “proper and appropriate,” especially since the result was that “the suspect was fooled, and it led to his arrest and the end of a frightening period for a high school.” The only burden placed on the FBI by the Inspector General was that it should seek additional levels of approval before having its agents pose as journalists. Paul Colford, vice president of The Associated Press, said, “Such action compromises the ability of a free press to gather the news safely and effectively and raises serious constitutional concerns.” Canadian journalist Graeme Wood, a contributing editor to “The Atlantic,” who also freelances for several other publications, spoke for many working journalists: “This [FBI policy] puts me in physical danger.”
Trusted news source or front for the FBI? Not a good question to face when dealing with suspicious and dangerous persons in the news.
