May an Officer Assume a False Identity Online in Order to “Friend” a Suspect?

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Officers are allowed to misrepresent their identities in the course of their investigations: they may pose as drug buyers, or prostitutes, or members of an organized crime syndicate. Is the same thing true online? In other words, may an officer claim to be someone else in order to “friend” a suspect on social media and thereby gain access to whatever information the suspect has posted? The answer isn’t clear yet, but I would guess that courts ultimately will say yes.

The practice seems to be widespread. The United States Department of Justice wrote this guide to social media for law enforcement. The guide notes that “[l]aw enforcement agencies across the country apparently are moving to use social media in investigations.” For example, the New York Times reports here that New York City police “follow [gang] members on Twitter and Instagram, or friend them on Facebook, pretending to be young women to get around privacy settings that limit what can be seen.” The DOJ guide cites a law enforcement survey in which more than 80 percent of respondents agreed that “creating personas or profiles on social media outlets for use in law enforcement activities is ethical.”

The legal status of the conduct is not settled. The DOJ states that an “unresolved issue is whether it is constitutionally permissible for police to set up fictitious identities in Facebook accounts or other social media in order to obtain photos, videos, and other content posted by other Facebook users.” I am not aware of North Carolina authority on point. The few cases that I could find from other jurisdictions disagree about the propriety of the conduct:

  • United States v. Gatson, 2014 WL 7182275 (D.N.J. Dec. 16, 2014) (unpublished) (officers used “an undercover account” to become Instagram friends with the defendant, and viewed “photographs of [the defendant] with large amounts of cash and jewelry, which were quite possibly the proceeds from the specified federal [stolen property] offenses”; this amounted to a “consensual sharing” of the images by the defendant, so his motion to suppress the photographs was denied)
  • State v. Windham, DC-13-118C (Mont. 18th Ct. Feb. 5, 2015) (unpublished) (an officer posed as a fictitious 16-year-old girl on Facebook, became “friends” with the defendant, and engaged in sexually-oriented private message communications with him; in the absence of a warrant, this was an unreasonable search and seizure)
  • United States v. Meregildo, 883 F.Supp.2d 523 (S.D.N.Y. 2012) (denying a racketeering defendant’s motion to suppress social media evidence, which officers viewed through the assistance of a cooperating witness; “Where Facebook privacy settings allow viewership of postings by ‘friends,’ the Government may access them through a cooperating witness who is a ‘friend’ without violating the Fourth Amendment. . . . While [the defendant] undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his ‘friends’ would keep his profile private. . . . [his] legitimate expectation of privacy ended when he disseminated posts to his ‘friends’ because those ‘friends’ were free to use the information however they wanted—including sharing it with the Government.”)

 

Facebook doesn’t like it. Facebook wrote this letter to the DEA, asking that “the DEA cease all activities on Facebook that involve the impersonation of others,” because “[t]he DEA’s deceptive actions violate the terms and policies that govern the use of the Facebook service and undermine trust in the Facebook community.”

A possible analysis. The threshold question for any Fourth Amendment argument is whether information shared on social media – even if accessible only to a limited set of “friends” – is subject to a reasonable expectation of privacy at all. I discussed this issue briefly on page 94 of my book Digital Evidence, and noted that courts don’t agree about the proper answer.

Assuming arguendo that information shared only with “friends” is subject to a reasonable expectation of privacy, the next question is whether a suspect who accepts a friend request from a fake profile being operated by an officer thereby relinquishes that expectation. That’s similar to the question of whether a suspect who allows an undercover officer into the suspect’s house has relinquished the expectation of privacy that attaches to the home. The answer is generally yes, even though the officer has misrepresented his or her identity in order to gain access. See generally  Wayne R. LaFave, Search and Seizure § 8.2(m) (“The Supreme Court decisions, then, collectively appear to support the following proposition: when an individual gives consent to another to intrude into an area or activity otherwise protected by the Fourth Amendment, aware that he will thereby reveal to this other person either criminal conduct or evidence of such conduct, the consent is not vitiated merely because it would not have been given but for the nondisclosure or affirmative misrepresentation which made the consenting party unaware of the other person’s identity as a police officer or police agent.”). Based on that analogy, my guess is that courts will end up concluding that a suspect’s decision to accept an “undercover” officer’s friend request amounts to consent for the officer to view anything in the suspect’s account that is available to “friends.”

What about lawyers and judges? Although this post concerns officers’ investigative use of social media, it is worth reminding readers that the rules regarding lawyers’ and judges’ use of social media are discussed in this previous post by my colleague Chris McLaughlin.

5 comments on “May an Officer Assume a False Identity Online in Order to “Friend” a Suspect?

  1. It is interesting that the police will be provided with authority to commit acts that it would otherwise be unlawful for a civilian to commit. If a civilian were to obtain property by saying he were another, he could be convicted of obtaining property by false pretenses. If a civilian enters upon the property of another by posing as someone else, they could be convicted of trespassing. If a civilian provides false information to a police officer, there is actually a statute for that, or for resisting a public officer. Still, if the police want to do it, I guess that is ok.

  2. Have a question for you”
    I have been told that in this age of technology if a Employee Intentionally inserts their Icloud Information into a Apple Device owned by their employer and thus Locks it for Employers without the code and leaves and refuses to provider the code or unlock it them self –It is now considered a Crime–I contacted the Verizon and Apple stores and they say it is But they also say they can only give that type of information to Lawyers representing the case with proper procedural paperwork–the local police dept classified it as a class H Felony for § 14 74. Larceny by servants and other employees.–while when I went to file charges the Sheriffs office –refused to allow Filing –I fell this will be a larger issue in upcoming years so was looking some insight on the matter
    Thanks

  3. Hmmm… So many problems with those analogies Walter. A better analogy would be the following: if YOU (a non-policing citizen) want to go on Facebook and pretend to be a 12 year old girl and become friends with a 40 year old man, YOU CAN DO IT. LEGALLY. How is obtaining property by false pretenses analogous here? What property is obtained by false pretenses when police create fake usernames and befriend a suspected criminal? I don’t see how that could compare. And if you’re a prosecutor, good luck convicting someone of trespass who ONLY dresses up as a cable repair man, is given permission to enter a premises, does not commit any other crime while on the premises, but is not actually a cable repair man. Unless you refuse to leave when your true identity is revealed, no crime there. And finally, if you provide false information to a police officer AND it delays or obstructs them carrying out an official police duty, THAT is a crime. And it should be. Just like the crime of making a false report to law enforcement, it requires that the act interferes with the operation of law enforcement duties. It should be criminal for people to lie to law enforcement if those lies lead to any delay or obstruction in their duties. Taking the police away from more important tasks (like setting up a fake Instagram account to catch a major drug dealer) by lying to them should be criminal.

  4. If this were permissible, then could the police ask you for the key to your home, your automobile, your business, your safe deposit box even though nothing incriminatory was inside? The fingerprint is tantamount to a key, opening something that is locked and private for a fishing expedition. Absent a proper search warrant (with specifically stated objectives of the search), This should not be permissible.

  5. It shouldn’t be aloud… it’s misleading, lieing, trickery, manipulative, deceitful, i know they do these things here in the UK now too (don’t ask), and basically what your saying is even if you didn’t accept them as a “Friend” to them your “Friends” having free access to your posts is being able to “freely share it”, and while YES they can do this to other people… it’s not fair to get someone to snitch you out even when what you said didn’t mean what they claimed you said… and there has been a lot of issues people calling the cops on people for things they said on FB, but the cops shouldn’t be involved nor even be asking for permission to enter your home… knowing you didn’t mean any harm… but they do this anyway… but it isn’t fair game for them or anyone to be so manipulative, if only there were proper laws even against manipulation but then that would bring down the whole monopoly of our governments wouldn’t it?, that’s the main issue right there… especially with all the loopholes in laws, regulations and policies… but in this case there is non while on Facbook, and while FB could improve on a few things… it doesn’t make it alright to twist and turn and hide behind a fake profile to “prove” something.

    What would you say if someone used the “Lists” of Facebook which is detached from the main Facebook “Friends” for more privacy, and they only add certain people to it and they never added the person who snitched to the cops on them to it yet shares what you apparently “said” to them in Private Message with the cops and the cops see this as legal and fair game to persecute you? what would you say to that? that honestly i don’t feel is legal or right, non of this should be legal and it shouldn’t be “fair game” to law enforcement, especially when someone uses the full Privacy options of Facbeook.

    How can we ever be safe online or at home if they are aloud to come to you, even ask for permission to enter your home and yet not even share with you what they are doing and why they wanted permission to enter your home?, it’s even worse when they create fake profiles and lie out of their teeth… For someone who didn’t know these things, and very few do… gaining permission to be on your Facebook list or even get inside our home without an explanation as to why is also illegal, misleading and manipulative… that’s like saying “We are guilty before being given the reason we are being persecuted”, but ti them they say we DO know… we can’t know if we aren’t being taught law… therefore the whole law system really isn’t right… but even if you do how should we be reliable for all these loopholes?.

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