The week’s arrests of former Federal Agents Carl Mark Force IV and Shaun Bridges is more than just an embarrassment to the agencies involved. It is another indicator of the managers’ lack of understanding of their agents’ Internet investigations work. Much to the chagrin of some of our book, Investigating Internet Crimes, readers, we devoted considerable space to discussing investigative policy. Gee, I wonder why? The Silk Road investigation has provided an example, and not a good one for law enforcement managers to have policy and understand what their investigators are doing online.
Several clear things have appeared in this case. Early on the lack of documentation exploded when the former FBI Agent Tarbell wrote in an affidavit that he failed to document his actions when he found the Silk Road server. I had previously defended the FBI and publically stating that we needed to wait until all the facts (and testimony) were in. Well at Ross Ulbricht’s trial it never came in and we have just found out why some things were never discussed. Agents Carl Mark Force IV and Shaun Bridges were under investigation and the defense was prevented from disclosing anything about their conduct. Now, I am not an attorney and cannot discuss how those motions were or should have been handled, but I can discuss the disclosures recently made and how poorly it appears the Federal supervisors acted.
Supervising people undercover has been a long standing supervision intensive problem. Long ago working vice I remember a supervisor criticizing my performance after the fact. However, that supervisor was right there, listening to the wire and gave me immediate feedback. I would not be making that mistake again. Internet investigations have changed what it means to be undercover (UC). When we first started doing UC on the Internet in the late 1990’s to document what we did and the chat’s we had included a video camera over our shoulder. At that point there was not much else we could do. As investigative techniques continued, law enforcement found tools to assist them in their documentation. Screen captures and video recordings were accomplished with tools like Techsmiths Snagit and Camtasia which were adopted for this new purpose. Later tools like WebCase were designed specifically for treating information on the Internet as evidence.
Collection of evidence from the Internet is a unique and specific problem which I wrote about years ago in a whitepaper Collecting Legally Defensible Online Evidence. Not collecting Internet evidence properly is just the beginning of the Federal Managers supervision problems in this case. The next issue was the fact that they were not supervising their undercover agents. We do know that some recordings were made, but who looked at them. Was anyone looking at the UC’s actions online? Was anyone review the recordings being made? Was anyone supervising the agents? Apparently not, because the criminal investigation of the agents found the use of one of the unauthorized accounts in one of the UC recordings. No supervisor was looking or if they were they didn’t know what they were looking at. Agent Gambaryan reviewed the case file of Force and found “…several DVDs of video taken with FORCE’s official DEA laptop with a screen-recording program…”.
Gambaryan found the reference to an account that Force used that was not mentioned in the reports. But it was in the undercover video’s. What supervisor was reviewing his actions. Again, apparently no one.
Another indicator the supervisors should have seen with Agent Force as UC was the encrypted communication. Everyone should have known he was using encrypted communications with DPR (Ross Ulbricht). In fact in Agent Gambaryan’s affidavit he comments on the prosecutors continual mentioning of providing all of the encrypted communications.
Agent Gambaryan also, although probably not intentionally, puts the issue of undercover Agent supervision squarely on the managers feet when he surmises Force’s failure to provide the encryption keys to his managers.
If the supervisors/managers were, doing their job this would not have been an issue. They should have known and would have obtained the keys. But they didn’t.
Okay, back to our book. As a former law enforcement supervisor I have recognized for years that supervision, management of undercover officers and policy go hand in hand. Previous to writing our book, I wrote the first published model policy on using social media by law enforcement because I saw the need. We included much of this in our book, including ethics discussions and these model policy’s for law enforcement conducting Internet investigations. We did so, because it has not been discussed and needs to be understood. Law enforcement managers at all levels (local, State and Federal) need to understand that undercover work on the Internet has just as many supervision issues as undercover work in the real world. Some of the issues are the same and some are different. But, supervision and management must still occur regardless of the case.