By  Kelly F. Vieira

From the dawn of the internet, critics have been quick to bring up the risks of running into evil-doers lurking behind the screen. For as long as the world wide web has been part of modern life, even the least cynical users have doubtless come to wonder, how do I know who I’m really talking to? The internet grants users a brand of anonymity like no other, and that brings with it the opportunity to try and become a different person online.

Thanks to pop culture entities like the wildly popular Catfish: The TV Show, the past few years have brought on a more acute awareness that people aren’t always who they portray themselves to be online. This issue is especially prevalent in the online dating world, where fake profiles are common. As a result, many internet users have become vigilant, going through a measure to try and verify the identity of people they meet online. After all, an attractive dating profile could be hiding a completely different person behind the keyboard.

Nowadays, people looking for a date aren’t the only ones susceptible to “catfishing” (a recent slang term for the act of pretending to be someone else online). Law enforcement has also started to take advantage of the ability to create new identities. For better or for worse, social media is the new frontier for criminal investigations.

While undercover investigations by the police are nothing new, the advent of social media has brought with it opportunities to gather evidence in increasingly clandestine ways. The ability to create accounts with false information allows police to interact with potential suspects without blowing their cover. Social media tactics have led to a considerable number of arrests, which some may see as an advantage for society as a whole. Some argue that police should be able to use trickery if it leads to justice.

However, as with any state action, there are complex legal ramifications which are important to consider. Though the police have generally been granted broad authority to investigate crimes as they see fit, there are critical limitations which the law has put in place. In the new age of the internet, these limits are being put to the test.

Is it legal for a police force to use fake Facebook profiles to look for criminal suspects? The answer remains unclear. What we do know is that courts have held that Constitutional rights such as the right to free speech are protected even on social media. When it comes to police interacting with personal data, it has also been held that the Fourth Amendment remains intact.

As such, one might argue that the police are constrained by the Constitution when they seek out information via social media. For example, if a suspect has a private Facebook profile, they might not expect that what they post there will be visible to the police. They may reasonably expect that only family and friends would have access to what they post. Conversely, you could argue that most people know that Facebook is not as “private” as we might like to believe. In reality, it might not be so reasonable to expect any sort of privacy online.

Courts have yet to make a clear stand as to what expectation of privacy someone might have when it comes to their Facebook profile. Right now, it is a gray area where the law has not quite caught up to rapidly changing technology.

If a police force uses fake identities to glean information from suspects online, there is also the question of whether the social media companies themselves can take action. In September 2018, Facebook actually sent a cease and desist letter to the Memphis police department, claiming that they violated the terms of service by creating fake profiles. The interaction between the police and social media companies adds another layer of complexity to this issue.

Not only do fake profiles created by the police bring about legal concerns, but there are also ethical questions. Do the police have any ethical constraints when it comes to tricking potential suspects online? Is there a line where the trickery becomes inappropriate? In an extreme example, a police force in Ohio created a fake profile on a dating app and actually sent nude photos to their suspect during the sting operation. Some argued that the tactics went too far, psychologically manipulating the suspect.

What about when the police explicitly target certain individuals or groups? In October 2016, ACLU brought to light the practice of certain police departments which appeared to be using social media to ‘spy’ on politically charged activist groups. These sorts of targeted tactics may threaten First Amendment rights to post on social media as one pleases. It is yet to be seen how exactly courts will rule if these police tactics are legally challenged.

Only time will tell as to whether law enforcement will continue to enjoy relatively free reign online, or if the days of state-sponsored catfishing are numbered.

 

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

 

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