(FROM THE WALL STREET JOURNAL 1/22/15)
By Joe Palazzolo and Jacob Gershman
As Americans flock to social media such as Facebook, police and
prosecutors have followed them -- sometimes even impersonating
users or setting up fictitious accounts to gather intelligence or
evidence for trials.
It is unclear how widespread the tactics are, but the undercover
activity is turning up in a range of legal cases and has won the
blessing of a few courts.
Privacy advocates worry that the tactics poses unique threats.
Their concerns were highlighted in a settlement announced Tuesday
in which the federal government agreed to pay $134,000 to a New
York state woman who accused a Drug Enforcement Administration
agent of impersonating her on Facebook without permission.
The Facebook page run by the DEA showed a photo of Sondra
Arquiett posing with her young son and niece and an image of her
reclining on the hood of a BMW. At one point, it also featured a
photo of her "in her bra and panties," according to her
lawsuit.
The agents created the page using photos from a phone seized
from Ms. Arquiett, who in 2011 pleaded guilty to conspiracy to
possess cocaine with the intent to distribute it and received five
years of probation.
In the guise of Ms. Arquiett, the agent sent a "friend" request
to at least one fugitive as part of an investigation of an alleged
drug ring, court documents said.
"We're happy that the U.S. attorney's office recognized the
violation of Ms. Arquiett's privacy rights and resolved the
matter," said her attorney, Donald T. Kinsella.
A Justice Department spokeswoman said that "department
leadership has already met with law enforcement agencies to make
clear the necessity of protecting the privacy and safety of third
parties in every aspect of our criminal investigations."
In December, a U.S. judge in New Jersey approved an undercover
Instagram account for a federal and state investigation of
burglaries. During the probe, one of the suspects, Daniel Gatson,
accepted a "follow" request from the account, giving investigators
access to photos he posted on Instagram, including shots of "large
amounts of cash and jewelry," according to court papers.
Mr. Gatson, who was charged in the burglaries and pleaded not
guilty, sought to have the evidence thrown out, arguing that
investigators lacked the authority to view his photos. But U.S.
District Judge William J. Martini ruled that "no search warrant is
required for the consensual sharing of this type of
information."
The terms of use for both Facebook and Instagram ban law
enforcement from impersonating others, with or without consent.
Facebook's chief security officer, Joe Sullivan, wrote to the
DEA in October after seeing reports of Ms. Arquiett's case, asking
the agency to "cease all activities on Facebook that involve the
impersonation of others."
Still, many legal experts say it makes sense for judges to apply
to the digital realm well-settled law that permits investigators to
use deception and disguises in the physical world.
But privacy advocates raise concerns. Alan Butler, senior
counsel at the Electronic Privacy Information Center, said the
federal Stored Communications Act of 1986 created protections for
information stored online. At least one U.S. court has held that
Facebook "wall" posts by members that aren't viewable by the public
are covered by the law.
"When it's clear that Congress expects that police will obtain
these electronic communications with a warrant, any time they're
trying to get around that limitation or stretch exceptions, courts
should be skeptical," he said.
In 2013, the Justice Department instructed U.S. attorneys and
federal agents to give extra scrutiny and high-level supervision to
undercover operations that include making false representations on
social media, a Justice Department official said.
The prevalence of social media virtually ensures that
authorities will continue to patrol online in secret, current and
former law-enforcement officials said.
In a survey of about 500 local, state and federal law
enforcement officers commissioned last year by database provider
LexisNexis, 81% said they actively used social media in
investigations. Asked whether creating fake online personas was
ethical, about 80% agreed that it was, 11% were neutral, and 9%
disagreed.
One of the first rulings on using social media for undercover
purposes came in 2012, when a federal judge in New York said an
alleged gang leader had no privacy interests in Facebook posts he
shared with friends.
Federal agents had viewed the profile of Melvin Colon through
the account of one his Facebook "friends" who was cooperating in
the investigation. Mr. Colon, who was sentenced to life in prison
in 2013, had used Facebook to post threats to rival gangs and brag
about his exploits. Agents used the evidence from Mr. Colon's
profile to obtain a search warrant for his full account, including
private messages.
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Christopher M. Matthews contributed to this article.
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