(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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