By Ron Hosko, LE Action president
USA Today, echoing others, objects to the FBI's use in a 2007 case of the Associated Press name in an investigation of multiple bomb threats and disruptive cyber attacks at a high school near Olympia, Wash.
Though this view is understandable, the government's actions offer a glimpse into the challenge of cyber investigations and into FBI policy considerations. Perhaps it's a teachable moment, but little more.
When the FBI tried to help a local law enforcement agency investigate repeated threats and cyber attacks that caused frightening daily evacuations and bomb sweeps at a high school, investigators employed court-authorized techniques to try identifying the suspect.
Later, they employed a ruse utilizing the AP name as bait in an email only to the suspect. The suspect contacted the covert operators, and his identity was uncovered. He was arrested, he confessed and he was convicted.
To strike a balance of security and privacy, the FBI takes seriously its use of sensitive operations, relying on established policy, decades of experience and a small army of legal counsel. Policy related to the techniques used in the case, as well as the use of a media "dangle," is in place and is adhered to, as it must be.
Any lack of clarity in the interpretation of that policy has been strengthened in the intervening years and would today almost certainly generate additional review from FBI headquarters and Justice Department executives.
However, no law was broken, no policy was avoided, nothing was traded away with an "ends justify the means" calculus. The Internet and the 24-hour news cycle mean law enforcement faces far more informed, capable foes than just a few years ago.
We live in a world where all lawful options must remain available, particularly as the threat of harm is heightened.
Notably, even the venerable New York Times recognizes the need for "masquerading" and has guidelines supporting, with higher-level review, the use of that technique. Current FBI policy is rigorous. This technique is rarely used, and is potentially vital to the success of an investigation.