Is it OK for Police to Create Fake Social Media Accounts? You May be Surprised at the Answer!
By Gayle O’Connor – The rules governing who can use fake social media accounts to gain access to confidential information are completely different according to whether the case is civil or criminal. Several courts and bar associations have issued opinions regarding this issue.
For example, New Hampshire requires that a request from a lawyer (which includes any representative of the lawyer, employee or otherwise) to view non-public social media content of an opposing party in a civil case must: a) disclose the lawyer’s full name; b) inform the individual of the lawyer’s involvement in the litigation; and c) identify the lawyer’s client in the litigation. N.H. Bar Assn Ethics Adv. Comm., Op. 2012-13/05 (2012).
On the flip side, we look at the following criminal case. A man, Daniel Gatson, was accused of perpetrating a long series of burglaries in New Jersey and neighboring regions. He was primarily taking jewelry worth over $3 million in total. The criminal case was first tried at the state court level and was brought up on appeal to the federal court on several issues, including the fact that police had access to his Instagram account. United States v. Gatson, Criminal No. 13-705 (D.N.J. Dec. 15, 2014. United States District Judge William Martini denied a defendant’s motion to suppress evidence collected from his Instagram profile after he connected with an undercover account created by police officers.
The defendant Daniel Gatson argued that the police had no probable cause to search through his Instagram account. But Judge Martini argued that since Gatson readily accepted the request to become friends with the police officers, he enabled law enforcement to view photos and other information that he posted to his Instagram account. No search warrant is required for the consensual sharing of this type of information. As a result, the police did not need a search warrant. The sharing was consensual, the judge ruled. Gatson was sentenced to 300 months in prison for his role. See generally U.S. v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012).
For its part, Facebook is extremely unhappy with law enforcement’s use of fake profiles on the site, including Instagram which Facebook owns. Facebook chief security officer Joe Sullivan wrote a strong letter to the Drug Enforcement Agency that reprimanded the group for impersonating users to gather information, saying that “Using Facebook to impersonate others abuses that trust and makes people feel less safe and secure when using our service.”
Gayle O’Connor is a legal technology consultant with 30 years’ experience specializing in legal marketing, particularly social media, blogs and websites. She is currently working as the Marketing Manager at Social Evidence, a cloud-based application designed to discover, organize, analyze and authenticate specific social media evidence. Gayle was previously the Marketing Manager at Degan, Blanchard and Nash, a large law firm located in New Orleans. Gayle is also a former trial technician for the federal public defenders, a marketing director for numerous legal software providers and has taught legal research at law schools. Additionally, she has been a featured speaker at American Lawyer Media LegalTech Events, ABA TECHSHOW, Online World, Special Libraries Association, Washington State Paralegal Association, National Business Institute, ABA Litigation Section Meetings, local Bar Associations throughout the U.S. and international organizations such as the Law Society of British Columbia and the New Zealand Law Society. She can be reached at email@example.com, www.social-evidence.com or @gaylemoconnor.
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