Friday, April 29, 2016
Andy Wang, United States Court of Appeals for the Fifth Circuit, has published Stealing Press Credentials: Law Enforcement Identity Misappropriation of the Press in the Cyber Era at 6 University of Miami National Security & Armed Conflict Law Review 25 (2015-2016). Here is the abstract.
Law enforcement agencies have long resorted to tricks and ruses to catch perpetrators of crimes. But this article examines the rise of a novel, and controversial, form of law enforcement trickery: the misappropriation of media and press identities. Specifically, newly declassified documents revealed that in 2007, undercover FBI agents, posing as employees of the Associated Press, created a fake AP article laced with malware and sent it to a suspect in order to uncover his identity and location. All this was done without the knowledge and consent of the AP. Media and press organizations around the country sounded alarms on the use of this tactic, belying the controversial nature of a government law enforcement agency misappropriating the entity of the so-called "free" press. But what legal standards are applicable to this case? And under such standards, did the FBI break the law while trying to enforce the law? Drawing upon applicable constitutional, statutory, and regulatory materials, this article analyzes the legality and constitutionality of such a tactic, examines its potential for use and abuse, and addresses its overall soundness in the cyber era.
Download the article from SSRN at the link.