Accusing the Justice Department of stonewalling, media company Associated Press filed a suit Thursday against the FBI for failing to turn over information under the Freedom of Information Act about a criminal sting operation in which it created a bogus news story and impersonated an AP journalist.
The federal suit, filed in U.S. District Court in Washington, D.C., also demands that the government catalog all instances since 2000 when it has impersonated the news media and that it disclose its internal policies governing the practice.
The media group says that it learned last October that the FBI had “masqueraded as a member of the news media -- specifically, as the AP -- in order to deliver surveillance software to a criminal suspect’s computer."
In investigating a 2007 bomb threat in Lacey, Wash., the FBI emailed a 15-year-old suspect a link to a fake AP news story, according to the suit. When the suspect clicked on the link, he unwittingly downloaded surveillance software that allowed the government to track his whereabouts.
When the tactics were revealed publicly last year, some media officials and lawmakers criticized the Justice Department for using “deceptive” practices, but Justice Department officials defended their actions.
Hoping to learn more about the practice, the AP filed a FOIA request last year, but the government has said it could take 649 days to gather the materials, the AP says.
While the FOIA suit does not directly challenge whether the government’s conduct violates press freedoms under the 1st Amendment, it raises questions about whether law enforcement officials can endanger the reputations of news organizations or damage their credibility with sources by impersonating journalists in criminal investigations.
“I think that AP has a strong suit for the documents under FOIA, but a very difficult claim under the 1st Amendment," said Erwin Chemerinsky, dean of the UC Irvine School of Law. "That said, I find the government's conduct to be deeply disturbing.”
Justice Department officials declined to comment for this article.
Legal experts noted the government is typically given wide latitude in conducting criminal investigations -- even if that requires using deception to gather information.
"The law is clear that the police can tell lies to suspects as part of investigations. Undercover work is legal," said Aaron Caplan, a professor at Loyola Law School.
Since "an undercover officer can pretend to be a drug dealer," he said, there did not seem to be a material difference if the officer "pretends to be a journalist."
But in a letter to then-U.S. Atty. Gen. Eric H. Holder Jr. last October, AP’s general counsel, Karen Kaiser, said the government's conduct raised "serious constitutional concerns.”
"By creating false news accounts, misrepresenting the source of a news story, and falsely attributing it to the AP, the FBI undermined the most fundamental component of a free press -- its independence," Kaiser wrote.
"Such actions also compromise our ability to gather the news safely and effectively in parts of the world where our credibility rests on the basis of AP operating freely and independently," she added.
Caplan agreed that impersonating reporters could ultimately undermine public confidence in the press.
“I think it could erode people’s trust in reporters if one of your sources doesn’t know whether you’re really a reporter or the police,” he said. “They may be less willing to share information with you. That hurts the public.”
He added that the 2007 sting did not merit using such a tactic. “For this, it doesn’t seem to be of the magnitude of an investigation that requires this,” Caplan said.
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