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Previously, I had thought there might have been prohibitions against spies and law enforcement officers from going undercover as journalists, e.g. because this puts real journalists in greater danger of being prosecuted/dealt with as spies and because folks who might otherwise blow a whistle on unethical practices might reasonably expect their press contact to be an undercover agent really seeking to out the person and help ensure the information remained hidden.

However, the Department of Justice Office of the Inspector General recently ruled that FBI agents may impersonate journalists while conducting undercover investigations.

According to that linked article, FBI Director James Comey has previously called the practice "lawful and, in a rare case, appropriate." He claims that the "use of such techniques is subject to close oversight, both internally and by the courts that review our work."

What are the standards applied in this oversight, in theory or in practice? Are there known examples of requests that failed even the internal oversight process, or clear differentiators between instances where impersonating a journalist is ruled OK vs. those where it's ruled not OK?

  • I'm not sure how this is a question about law. The legal aspect of this question seems to be resolved: the FBI is legally allowed to do this. How they decide whether it is a good idea is a matter of their internal policy and procedures, but not relevant to the law. – Nate Eldredge Oct 23 '16 at 5:55
  • @NateEldredge It sounds like your answer to this question would be "always; there are no legal controls or limits on the use of this technique." That is certainly not the only answer possible. (Typical standards of what makes a high-quality well-developed answer, such as citations, would apply to an answer with that core as well as possible alternatives.) – WBT Oct 24 '16 at 2:36
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They are all detailed in the report linked to the news article. relevantly (p.8):

Undercover Operation involving FBI employees posing as members of the news media

Undercover Review Committee review and Deputy Director approval, after consultation with Deputy Attorney General

Since the process is internal there is no way of knowing if or how often the requests are refused.

  • It just says a review is required, with certain broad exceptions if an impersonator claims "emergency circumstances, such as an immediate or grave threat to life or property, a threat to the national security, or the loss of a significant investigative opportunity." Are all applications rubber-stamp-approved, since there are no other rules restricting these operations beyond requiring that paperwork be in order? Is this review process like the FISA court? Why would the FBI tell the FBI they couldn't do something they wanted to do, when no one at FBI is directly paying the costs of the actions? – WBT Sep 23 '16 at 13:25

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