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FBI can’t pretend to be the AP without special approval. They can pretend to be Apple.

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As a number of outlets have reported, the DOJ IG just released a report on FBI’s impersonation of a journalist in 2007. The FBI pretended to be the AP to catch a high school student making bomb threats.

As I will explain in more detail in a follow-up post, the IG report somewhat exonerated the Agents who engaged in that effort. It also gives reserved approval of an interim policy FBI adopted this June (that is, well after the press complained, and just as the IG was finishing this report) that would prevent the FBI from pulling a similar stunt without higher level approval.

But some of the details in the report — as well as one of its recommendations — suggests that the FBI would still be able to pretend to be a software company making a software update. Here’s the recommendation.

Recommendation 2: The FBI should consider the appropriate level of review required before FBI employees in a criminal investigation use the name of third party organizations or businesses without their knowledge or consent.

As the report explains, this concern arises because FBI policies on undercover activities distinguishes between impersonating a biological person and a corporate one.

Finally, as we described in Section III of this report, we learned during the course of this review that while FBIHQ approval is required to use a third person’s “online identity” in undercover online communications or to make “untrue representations . . . concerning the activities or involvement of any third person” without that person’s knowledge or consent, special approval was not required to use the identity of an organization or business in undercover online communications or in other undercover activities. The new interim policy changes that policy as it relates to news organizations, but does not address this issue with regard to non-news organizations or businesses. We think the Department should consider the appropriate level of review necessary before agents in a criminal investigation are allowed to use the name of a third-party organization or business without its knowledge or consent, in light of the potential impact that use might have on the third party’s reputation.30

30 After reviewing a draft of this report, the FBI provided comments explaining that the heightened level of review and approval required for FBI employees to pose as members of the news media was introduced because such activity potentially could “impair news-gathering activities” under the First Amendment, but that such constitutional considerations do not apply to businesses and other third parties. Our recommendation, however, does not rely on equating the reputational interests of some third party organizations and businesses with the constitutional interests of others. We believe that reputational interests, and the potential impact FBI investigations can have on those interests, are themselves sufficiently important to merit some level of review before FBI employees use the names of third party organizations or businesses without their knowledge or consent. [my emphasis]

The new policy requires additional approvals before the FBI can pretend to be a news-gathering organization, but only requires that higher approval for news-gathering organizations, not other corporate entities.

In other words, FBI is only imposing these new restrictions because by pretending to be a journalist, it might impair the news-gathering activities under the First Amendment. But the FBI doesn’t care about the reputational harm that its undercover activities might do to non news media corporations.

And there’s nothing here that would prohibit the FBI to engage in the most obvious undercover activity to accomplish the same objective they had in the bomb threat case: to get someone to click a link that would, unbeknownst to the target, infect their computer with malware.

In other words, by all appearances, the FBI can’t infect you with malware by pretending they want to interview you, but they could infect you with malware by pretending they want to update your software.

Thursday: Repetition

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A little Prince to make the painful repetition a little easier to take.

By repetition I mean what’s happening in Puerto Rico compared to what has already happened in Michigan.

Some of Michigan’s most financially distressed cities were forced to accept emergency managers, supplanting the cities’ democratically elected officials. Under state law, EMs were the sole point of power and authority for administration until the cities were deemed financially viable. We all know how that turned out; in Flint’s case, ten people died from Legionnaire’s disease and roughly 8000 kids will pay for the incompetence of the emergency management scheme for the rest of their lives due to the permanent effects of lead poisoning. The incompetence is further magnified by governmental bodies’ failure to do the right thing to completion, while continuing to milk the city and state of more money to no effect.

Witness the state attorney general Bill Schuette now asking for $3.4 million to investigate what can already be easily seen in records released to date. The assessments made so far have been equally wrong — like Schuette’s office suing two consulting firms when documentation clearly shows outright stupidity in contract management or malfeasance on the part of government was the real problem. And none of Flint’s water problems would have happened had not the city been forced off Detroit’s water by the state treasurer’s office, which rejected a last-minute offer far cheaper than construction of the new Karegnondi water line. Seeing this doesn’t need millions of dollars, only ethics.

Puerto Rico — with a population smaller than Los Angeles in an area a little smaller than Connecticut — is now undergoing a similar loss of democracy for similar reasons of financial distress. The territory is $73 billion in debt caused in no small part by suffocating federal policies. The U.S. Senate just voted to supplant Puerto Rico’s elected officials’ authority with a team of managers. They had too little democracy as it was before this schema, not having the same kind of representation that the fifty states have; many of the financial limitations Puerto Rico faces have been directly related to the territory’s inability to regulate commerce.

The economic hitmen have won. Now the vultures descend.

The galling part is this approach is called PROMESA (Puerto Rico Oversight, Management, and Economic Stability Act) — a promise. Brace yourselves, Puerto Ricans, at least they’ve warned you. Que Dios tenga misericordia porque los buitres no lo hará.

Odd lots
I’ve got a bunch of stray cats and dogs here that didn’t fit under any theme so far this week. In other words, there wasn’t much repetition. Make of them what you will.

Thank goodness tomorrow is Friday and I can indulge in a little jazz. See you then.