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B. Media Response to the FBI’s Investigation of Jenkins
The FBI did not publicize the assistance its agents provided to the Lacey
Police Department during the investigation of Jenkins’s bomb threats. However, on
July 18, 2007, 2 days after Jenkins pleaded guilty, the online technology news
website, Wired.Com, released an article entitled “FBI’s Secret Spyware Tracks Down
Teen Who Made Bomb Threats.” The article explained how the CIPAV worked and
how the FBI used it to locate Jenkins. The article did not reference the fact that the
FBI had impersonated a member of the news media.
Seven years later, on October 27, 2014, The Seattle Times released an
article based upon e-mails obtained by the Electronic Frontier Foundation (EFF)
through a Freedom of Information Act request. The e-mails obtained by the EFF
disclosed the fact that the FBI posed as a member of the press when it contacted
and then identified Jenkins as the author of the bomb threats.
On October 30, 2014, the AP sent a letter to then-Attorney General Eric
Holder protesting the FBI’s use of a fake AP news story in connection with its
investigation of the bomb threats. In its letter, the AP’s General Counsel, Karen
Kaiser, complained that the AP learned, “more than seven years after the incident
occurred,” that “the FBI both misappropriated the trusted name of the Associated
Press and created a situation where our credibility could have been undermined on
a large scale.” Kaiser added, “It is improper and inconsistent with a free press for
government personnel to masquerade as The Associated Press or any other news
organization.” She said the FBI’s actions “undermined the most fundamental
component of a free press – its independence.” In addition, several newspapers
wrote articles questioning the tactics the FBI used to identify and arrest Jenkins.
In response to these news articles in 2014, FBI employees in the Cyber
Division worked with attorneys in the FBI’s Office of General Counsel (OGC), Cyber
Law Unit, to draft a “Situation Action Background” (SAB) report that described the
facts and circumstances surrounding the FBI’s investigation and identification of
Jenkins. The OGC attorney primarily responsible for drafting the SAB told us that
the document was created to inform FBI executive leadership about the FBI’s
actions to identify and apprehend Jenkins. The SAB also included OGC’s analysis of
the applicable Department and FBI policies in effect at the time of the investigation,
as well as OGC’s analysis of the applicable Department and FBI policies currently in
effect.
One week later, on November 6, 2014, FBI Director James Comey wrote a
letter to the editor of The New York Times defending the FBI’s investigation.
Consistent with OGC’s analysis in the SAB, Comey stated that the “technique [the
FBI used to identify and apprehend Jenkins] was proper and appropriate under
Justice Department and F.B.I. guidelines at the time” and that “[t]oday, the use of
such an unusual technique would probably require higher level approvals than in
2007, but it would still be lawful and, in a rare case, appropriate.”
The same day, the Reporters Committee for Freedom of the Press (RCFP), on
behalf of 25 other news organizations, wrote a letter to Holder and Comey voicing