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Informants and undercover FBI employees are also allowed to do a great deal online in the name of “building bona fides,” such as creating fake identities or making themselves appear to be normal commenters on online fora. The guide says that in order to establish credibility, FBI employees “may make postings and communicate with individuals who are neither the subjects nor the associates of subjects … there is no limitation with respect to the amount of communication [they] may initiate in this regard.”
And the FBI is allowed to open new investigations on people it identifies through “passive monitoring or active communication” on websites.
An FBI spokesperson clarified that in order for an undercover or covert employee to monitor a website or forum, the site must already be associated with an investigation, “either because the forum was known to be used by a subject [of an investigation], or because the subjects are there. I can’t be in the forum trying to bait you into conversation.”
However, the FBI acknowledges that when its employees participate in online fora, they interact with people who may be bystanders to whatever activity led the bureau there in the first place. And that is not accidental. “We want to know if the subject has other people who are joining in, which people are part of the activity, and who is just there,” a spokesperson explained.
In other words, FBI agents can post and chat online with people who have nothing to do with an investigation, so long as they aren’t collecting intelligence — but in the course of those online communications, they can decide to start investigating someone.