Earlier this week, ACLU analyst Christopher Soghoian discovered that in 2007, the FBI impersonated the Seattle Times while investigating bomb threats made to a school in Lacey, Washington. The bureau was using a technique commonly referred to as “phishing” to monitor a juvenile after receiving tips that he was behind the threats. The FBI obtained a warrant and worked with the United States Attorney’s Office to draft a fake article that mimicked the style of the Seattle Times and included an Associated Press byline. The impersonation was so elaborate that the article even included subscription information for the periodical. A link to the article was then sent to the then 15-year-old suspect. When opened, it infected his computer with a spyware that allowed the government to track the juvenile’s online activity.  He eventually pled guilty to making the threats and subsequently served 90 days in a juvenile detention facility.

While the government’s use of online spyware to monitor criminal activity is widespread and well-known, the Seattle Times and the Associated Press are calling foul. Neither was informed that the FBI impersonated their publications in criminal investigations. The FBI stands behind its decision stating, “ We identified a specific subject of an investigation and used a technique that we deemed would be effective in preventing a possible act of violence in a school setting.” The editor of the Seattle Times argues however that the impersonation not only crosses a line, but “erases it…”

This controversy comes in the wake of a civil lawsuit filed this month after a DEA agent used photographs from woman’s confiscated phone to impersonate her online without her consent and to communicate with suspects in a drug investigation. Police and federal agents are permitted to lie to suspects during investigations and create fake profiles online. The law is clear in these areas. However, the issue in the DEA case and the Seattle Times controversy is that the government is impersonating real people and organizations. The Seattle Times and Associated Press have voiced concerns that the revelation undermines the integrity of their publications. The recent controversy will likely lead to debates in the legal community regarding whether or not government officials are permitted to impersonate others without their consent.

 

Allison Laubach

One Response to Online Impersonation

  1. Daniel Ward says:

    It seems to me that law makers should be concerned with whether the impersonation will actually cause harm. This will certainly be a tricky inquiry in some scenarios, but I contend that the obvious good that can come from using this sort of impersonation outweighs the potential harms that may come with the making of the determination. In the present case, the maker of the bomb threats was arrested, and the Seattle Times and AP were not really damaged. Their image was arguably not even diluted in the eyes of the single fifteen-year-old who received the email. This is, for me, a very obviously winning scenario. Why make impersonation per se illegal in this context when it has the potential to be a valuable tool for eliminating criminal threats? This is hardly the type of large-scale breach in privacy that might be more worrisome for other reasons. The slippery slope argument hardly seems applicable here, too, unless law enforcement decides to start using one likeness repeatedly, with many busts. In that case, however, the effectiveness of the tactic would be removed anyway, because the target might start to suspect the ploy.