Why didn't the FBI spot the leaked documents on Discord?

The FBI has unrestricted power and legal authority to monitor social media platforms and chat rooms but still failed to spot the leaked Pentagon documents, a veteran special agent told The Times. The fact that months passed before the FBI became aware of the classified documents on Discord and other social media outlets has raised concerns about the agency’s ability to keep watch on public and private internet sites that might include breaches of national security. Michael German who was an undercover FBI special agent for 16 years said it was extraordinary that the first people to knock on the door of the suspected Pentagon leaker were reporters from the New York Times and not members of the federal law enforcement agency. It was several hours later that the FBI turned up in force at the house in Dighton, rural Massachusetts and arrested 21-year-old Jack Teixeira, an IT specialist in the intelligence wing of the state’s Air National Guard. “FBI authority to monitor social media platforms was expanded significantly after the 9/11 terror attacks in 2001. There is no limit on the FBI scouring social media activity although the rules are more complicated when dealing with private forums,” German told The Times. German specialised in domestic terrorism and covert operations during his career with the FBI between 1988 and 2004, spending most of his time as an undercover special agent in Los Angeles, Boston, Seattle and Atlanta, infiltrating violent gangs on the radical right. He is now a fellow at the New York-based Brennan Centre for Justice. The FBI rulebook known as the “domestic investigations and operations guide (DIOG)” was further updated after the attack on the Capitol on January 6, 2021 and has specific sections in an appendix on how monitoring of social media forums can be carried out. “The FBI employs private companies to do widespread social media checks under contracts worth millions of dollars but often they seem to focus on protest groups, like environmental and political activists,” the former special agent said. There was plenty of evidence in social media about the planning for the assault on the Capitol leading up to the attack, and yet the authorities appeared unprepared for what happened, he said. “Either the contracted companies were looking at the wrong things or the FBI ignored them,” he said. Prior to launching an investigation on a particular social media platform or chat room, the FBI carries out an “assessment” of the potential suspicious activity. This could be based on an inside informant warning of activity that could be classed as covering national security, terrorism or criminal actions. In the case of the leaked Pentagon documents there appears to have been no FBI assessment underway that could have led to the launch of an investigation into a suspected leak of classified material on the Discord forum. “The challenge was that the documents were originally contained in a private forum which are harder to monitor but still can be done under the DIOG rules,” German said. A court order is required for recording private real-time communications on a restricted forum. In appendix L of the DIOG guidelines, the sensitivity covering monitoring of private chat rooms is underlined by the careful wording of the rules for FBI agents. “There are many real-time online forums that involve many people communicating simultaneously (eg chat rooms). While employees [of the FBI] are cautioned against recording communications not pertinent to the investigation, where feasible, it may not be possible to selectively record comments not pertinent to the investigation that have been made by other participants,” the appendix says. In such circumstances, FBI agents are obliged to review the recordings and redact or minimise what they feel is not pertinent, especially when they disclose the contents to a third party. The challenge for the FBI even under the more liberal guidelines authorised after 9/11 and the January 6 incident is that all agents have to act within the constitution which governs the sanctity of free speech and personal liberty. The DIOG rules state that agents must “ensure that civil liberties and privacy are protected through the investigative process”, and that “the least intrusive” methods are used. However, the guidelines recognise that FBI agents cannot just wait for leads to come and may have to take preemptive action if there are suspected criminal or national security threats. Early intervention is justified for the “prevention of criminal or national security violations before they occur”. The rules set out in the DIOG would have allowed the FBI to spy on the Discord forum had they received prior intelligence of an intention to place classified documents on the site. But the leak took everyone, including the FBI, by surprise.