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The FBI Is Investigating Me Because I Tweeted A Joke About Fake News

07/12/2016 12:11 PM AEDT | Updated 08/12/2016 3:43 AM AEDT
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This is a story about how the FBI came to investigate a joke I tweeted about fake news.

I’m a journalist, and I’ve written lots of stories about the FBI. I don’t think the bureau is retaliating against me for critical coverage. But I’m astonished that the nation’s top domestic law enforcement agency has launched such an obviously frivolous investigation — and worried that other people are being targeted for similarly silly reasons.

Journalists benefit from special protections because the Justice Department doesn’t want to embarrass itself by picking a fight with people who buy server space by the terabyte. Non-journalists in my position have fewer ways to fight back — and lots of reasons to worry. They don’t have easy access to millions of readers. Many companies are more likely to fire an employee for causing trouble than to provide legal counsel. Many people feel compelled to talk to the bureau even though saying the wrong thing can lead to a felony charge for lying to the FBI.

The FBI has limited resources and must choose its targets carefully. As fake-news websites grow in influence, and people on the president-elect’s transition team spread ludicrous and dangerous claims — like the idea that a pizza place in Washington, D.C., is the site of a Clinton child-sex dungeon — it’s crucially important that the agency charged with investigating terrorism be able to tell the difference between what is a joke and what’s not. An agency that is using people’s tweets — and retweets — as evidence in terror trials should probably understand how Twitter works. The bureau needs a bullshit meter.

This episode has not inspired confidence. Here’s how it all started.

A few months ago, a Twitter user who goes by @randygdub — or “Raandy” — tweeted that he worked in a post office in Ohio, which gave him access to Trump voters’ absentee ballots. He claimed he was tearing them up:

This was obviously false. Rudimentary investigation would have revealed that Raandy lives in California and doesn’t work at a post office. And absentee ballots are sealed. Even if you wanted to destroy Trump ballots, you couldn’t tell from the outside of the envelope whether a person was voting for Donald Trump, Hillary Clinton or Jill Stein.

But the facts didn’t matter: The right-wing conspiracy news machine ran with the story. Jim Hoft, who manages the blog Gateway Pundit, took the joke seriously. (He didn’t ask Raandy whether it was true.) The Drudge Report linked to the post. Rush Limbaugh mentioned it on the air. The U.S. Postal Service had to issue a statement.

Media outlets that believed Raandy’s tweet without checking it at all were roundly (and widely) mocked. The Daily Beast’s Betsy Woodruff, who actually spoke to Raandy via Twitter direct message, wrote a hilarious piece on the episode.

The story should have ended there. But a few weeks later, I was exchanging jokes on Twitter with Lachlan Markay, a reporter for the conservative Washington Free Beacon. (I believe that talking to people on the left and the right tunes your bullshit meter and makes you less likely to believe made-up stuff.)

Markay was tweeting a series of screenshots of obviously fake hacked emails supposedly released by WikiLeaks — including a completely fabricated one in which someone emailed Democratic operative Donna Brazile and Clinton campaign chair John Podesta to talk about “meeting with Soros,” rigging voting machines, and going to see the ‘90s alternative rock band Collective Soul:

Twitter

”This is fake,” Markay tweeted. “There is no hacked Wikileaks email with this subject line.” (Markay has since deleted his tweets, but he confirmed these details with me via email.)

I responded with a joke about Raandy’s joke:

Plenty of people got it.

The tweet was obviously a joke — that’s why I piled on with another joke,” Bloomberg View columnist Jonathan Bernstein wrote me later. “I know we’re all told that people miss sarcasm on the internet, but really, this one was about as obvious as it gets.”

Like Raandy’s original tweet, even a cursory investigation or application of common sense would have shown my tweet to be a joke. It was part of a conversation about fake news. I was a journalist commenting on a news story. And poll workers are generally surrounded by voters — and other poll workers — which makes it super hard to sneakily destroy ballots. I wasn’t a poll worker, which the FBI could have verified by contacting the D.C. Board of Elections. (It took me less than five minutes on the phone Tuesday to get a board official to agree to send me a letter certifying that I was not an election worker this cycle.)

As far as conspiracies to steal the election go, this one would have been terribly ineffective. The District of Columbia holds just three electoral votes, and the Democratic presidential candidate always wins overwhelmingly. In 1984, the only places landslide loser Walter Mondale won were his home state and the District. Clinton, predictably, received more than 90 percent of votes in the city.

But the facts didn’t matter. Conspiracy theorists seized on the tweet and shared it as fact, even after I clarified that it was a joke about how people uncritically repeat and share fake news.

After Texas Agriculture Commissioner Sid Miller claimed that his account had been hacked and that he hadn’t called Clinton a “cunt” on Twitter, I made another joke about the whole silly episode:

None of that stopped the outrage. One Twitter user warned that she had reported me to the FBI and to Project Veritas — a right-wing organization led by James O’Keefe that stages elaborate stings of reporters, liberals and others; heavily edits its gotcha videos; and then tries to get those people fired.

Project Veritas did not contact me.

But the FBI decided a journalist’s joke was worth its time.

On Nov. 4, I received a call from someone who said he was an FBI agent and wanted to speak to me. I figured it was a prank. I get a lot of hate emails and angry voicemails, and I dismissed the insane possibility that the FBI would investigate an obvious joke on Twitter. I would’ve called back anyway, just to be sure. But it was right before the election, and I forgot about it.

Then, on Monday, a month later, I received a followup message. It was the same person. It turns out he really is a special agent in the Washington Field Office of the FBI.

“Sorry to bother you,” he said. “The reason I’m calling is — I can’t give you too many details over the phone — we recently received some complaints regarding some online postings that were made. I don’t know if you know what that’s in reference to, but would you be willing to sit down with us for a couple minutes tomorrow morning by chance?”

I couldn’t believe it and started to say so. But he continued, “I know this may sound ridiculous, but when we receive complaints we have to follow them up no matter what.”

That’s not strictly true, and I knew it: The FBI, like other law enforcement agencies, decides what it should investigate. It doesn’t have to respond to every complaint. “Um, wow,” I said. “To get this straight, you guys are investigating complaints about a tweet that I sent?”

“That’s the gist of it, yes, sir,” he replied.

“And the FBI’s position is that you have to investigate if someone makes a complaint?”

“Because of what the allegations were,” he said. “Not because of what you were posting actually, because that’s free speech and everything, but because of the nature of what you were saying ― that’s what we’re following up on.”

The agent promised we could get it all wrapped up if I would meet with him for a couple of minutes.

I realized he was probably just doing his job, and the investigation probably wasn’t his idea. But FBI agents are trained to get people to speak to them without their lawyers, and there was no advantage to me in doing so.

I didn’t meet with the agent. Instead, I called my boss — and my company’s lawyers.

The FBI’s effort to question me was unusual. Under the Obama administration, the Justice Department adopted new rules designed to prevent overzealous FBI investigations of journalists from having a chilling effect on freedom of the press.

My Twitter bio identifies me as a journalist. So does my email signature. Most of the Google results for my name make it clear, too. I’ve reported on the FBI for years. I broke the news that one of their agents had deposited an unredacted version of an internal interrogation manual in the Library of Congress. I’ve written multiple stories about the bureau’s cooperation with overseas law enforcement agencies that have allegedly used rough tactics to interrogate Americans. And last month, after FBI Director James Comey injected himself into the presidential election, I noted that the idea that the bureau is “Trumpland” makes good demographic and historical sense.

Still, the FBI and I have always had a professional working relationship. When officials have asked me to withhold names of agents accused of wrongdoing to protect those agents from retaliation, for example, I’ve done so.

The first phone call I received from the special agent came just four days after my original tweet. But Justice Department rules require FBI agents to consult with the Criminal Division at least 30 days before attempting to question a journalist “whenever the proposed questioning may relate to an offense the member of the news media ‘is suspected of having committed in the course of, or arising out of, newsgathering activities.’” If the Criminal Division determines the investigation clearly connects to newsgathering activities, the FBI must then notify the director of the department’s Office of Public Affairs and obtain the attorney general’s “express authorization” before trying to question the journalist.

Based on my colleague Ryan J. Reilly’s reporting, that didn’t happen here. Washington Field Office officials cleared their investigation of me with the Criminal Division. No one would comment on the record, but my guess is that they think that’s all they needed to do and that tweets about news developments don’t count as activities “in the course of, or arising out of, newsgathering.”

The investigation is ongoing. I hope it goes no further. As Matthew Miller, a former Justice Department spokesman, said, “When you have to guess whether it’s incompetence or something nefarious, it’s usually best to guess incompetence.” But getting a call from an FBI agent investigating you is a big deal.

“This is the type of thing you might expect from a Jeff Sessions Department of Justice,” said Miller, referring to Trump’s pick for attorney general. “But they’re jumping the gun. It’s unbelievable.”

Other Twitter users who made similar jokes have told me they sympathize with my plight. But they say the FBI hasn’t called them.

“The idea that Nick Baumann was truly confessing that he had a job destroying Trump ballots is insane,” said Jon Schwarz, a reporter for The Intercept. “What kind of job would that be? What kind of lunatic would confess in public to having such a (non-existent) job? I ... tried to top his joke with even more preposterous confession jokes of mine. Everyone making the jokes knew they were jokes. That’s how jokes work, and I hope the FBI figures that out as quickly as possible — since if they don’t, I’ll presumably be sharing a cell with Nick.”

On Tuesday, I called @randygdub and asked him whether he had heard from the FBI about his original joke. He laughed and said he hadn’t.

Ryan J. Reilly contributed reporting.

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