Department of Justice (DOJ) Inspector General Michael E. Horowitz on May 26 published a "management advisory memorandum" highlighting concerns it had identified over the lack of Federal Bureau of Investigation (FBI) policy regarding child sexual abuse material (CSAM) and other contraband material being shared among employees.
It was issued following an investigation into an FBI employee who emailed images they believed to contain probable CSAM over a secure FBI email system to a prosecutor with whom they were handling a criminal case, according to the Office of the Inspector General (OIG).
Multiple FBI employees, including the subject of the OIG investigation, told the OIG that CSAM should not be transmitted over email, the DOJ said.
One FBI Inspection Division (INSD) employee told the OIG that such contraband images should be transmitted through the FBI’s closed network system designed for these types of images when they are being sent to other FBI field offices or to the National Center for Missing and Exploited Children.
However, none of the FBI employees could point to a physical written policy that specifically prohibited such conduct, OIG said.
"In addition, an employee with the Department of Justice Criminal Division’s Child Exploitation and Obscenity Section (CEOS) told us that emailing CSAM presents significant risks that the CSAM will be received by unauthorized individuals," the management advisory reads.
In its memorandum, the OIG noted that it found that the FBI's written policies do not address the issue of emailing CSAM and other contraband despite the FBI telling the OIG that employees should not do so.
"We also found that the absence of a written policy presents risks that such contraband will be received by unauthorized individuals. We further believe that the absence of such a policy risks exposing confidential child victim information to unintended recipients, in violation of 18 U.S.C. § 3509," the OIG wrote.
In its memo, the OIG recommends that the FBI clarify its policies regarding approved methods for transmitting CSAM along with other contraband to prosecutors and other government employees who need to review the material.
After reading the draft memorandum, the FBI indicated that it agreed with the OIG's concerns regarding the sharing of such emails between employees and created a "Standard Operating Procedure" to address them.
"After reviewing a copy of this memorandum, the FBI informed the OIG that it is in the process of deploying new methods to transmit and share CSAM and other sensitive material among law enforcement partners."
The FBI told the OIG that it believes a clear policy would ensure that such material would "only be received by authorized individuals with a need to access the material."
"Accordingly, we have begun drafting a program-specific Standard Operating Procedure (SOP), which will ultimately become part of our Crimes Against Children and Human Trafficking Program Policy Guide," the FBI told the OIG in response to the draft memorandum. "This new SOP will clearly prohibit the transmission of CSAM via email and delineate the approved methods to transmit CSAM for official purposes."
Under the SOP, FBI employees will be required to use encryption software that ensures such materials being digitally transmitted are encrypted "at rest and in transit, or require the use of encrypted removable media for use on stand-alone computer systems."
The FBI also noted that it had begun to develop approved digital transmission platforms prior to the DOJ's memo and that these platforms are "currently being deployed and used in a phased approach across the enterprise."
The OIG has requested that the FBI provide an update on the status of its response to the recommendation within 90 days of the memo being issued.
However, the OIG said it feels that the law enforcement agency has been "responsive" to its recommendation and is thus considering whether to close the recommendation once the FBI finalizes its new Standard Operating Procedure and provided a copy of it to the OIG.
The status of the issue is marked as "resolved" in the memo.
Nassar, a former doctor of the USA Gymnastics national team, was sentenced to up to 175 years in prison for a spate of charges after being accused of abuse in multiple lawsuits by female athletes.
The two former FBI agents failed to respond "with the utmost seriousness and urgency that the allegations deserved and required," and lied during their interviews to cover up their mistakes, a 2021 report by the DOJ’s Office of Inspector General (OIG) found.
One of the agents also made a false statement to the media in 2017 and 2018 about how his office handled the Nassar case and violated the FBI’s conflict of interest policy when they discussed a potential job opportunity with the U.S. Olympic Committee while still involved in the investigation into Nassar, officials said.