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

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• United States v. Gatson, 2014 WL 7182275 (D.N.J. Dec. 16, 2014) (unpublished) (officers used “an undercover account” to become Instagram friends with the defendant, and viewed “photographs of [the defendant] with large amounts of cash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. 18^th 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 Feb. 5, 2015) (unpublished) (an officer posed as a fictitious 16-year-old girl on Facebook, became “friends” with the defendant, and engaged in sexually-oriented private message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.

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