Undercover Policing in the Age of Social Media

For many people, social media has become a part of their daily lives and an ordinary way to share personal photos, political opinions, and much more—often without a second thought. But social media has also become a tool for something else: undercover police investigations, some of which can go on for years, and are generally left unregulated by courts.

There are important public safety and law enforcement reasons why police may use undercover social media accounts: take for example, confirming alibis, determining the source of valid threats before violence occurs or simply collecting evidence to solve crime. But when police begin using fake accounts to regulate and monitor broad swaths of the population—with no clear law enforcement objective in sight—several troubling implications emerge.

First, there is the potential for law enforcement to use this tactic to monitor groups or individuals on the basis of political affiliation, race or membership in a group or other protected category. Second, unregulated, long-term use of these fake accounts subjects both the persons being monitored and their friends and family to an extensive invasion of their privacy, often with no real gain for public safety.

With society moving deeper into the age of social media, this investigative tool may be necessary for police officers to keep up with criminal activities. But without regulation, it may also pose a threat to the public’s privacy.

Crime prevention or a dangerous precedent?

Although there are surely many examples of careful and productive social media investigations, a few recent examples illustrate the concerns with leaving these investigations hidden from public scrutiny.

In Memphis, police officers set up a fake Facebook profile to track Black Lives Matter activists. According to the officer who created the fake account, he did so to keep tabs on possible threats against police officers and to identify protests planned without permits. But no specific criminal activity or individual served as the focus of this investigation. Further, a number of individuals who had accepted friend requests from this profile were later barred from public buildings and surveilled exhaustively based on information gathered through social media on their affiliation with BLM.

In New Castle County, Delaware, a police officer created a fake Facebook profile to track a man for multiple years. Though the man had a previous criminal history, the police did not provide a specific reason for the investigation—and the target of the monitoring contends he was singled out in retaliation for posting a YouTube video about the police. Whether retaliatory or not, the undercover monitoring continued for nearly three years, eventually ending in the man’s arrest after a photo of a gun on his nightstand was posted to his Facebook account.

Though purchase records showed the weapon was bought by the man’s girlfriend, who claimed the gun belonged to her, the police alleged this was a straw purchase. The man was convicted and sentenced to 15 years imprisonment for possession of a gun by a person prohibited. Despite some controversy surrounding the case, the Delaware Supreme Court ruled that detectives’ multiple-year monitoring did not violate the Fourth Amendment.

The U.S. DEA has also developed fake Facebook accounts—even commandeering the identities of former arrestees for this purpose. In 2010, an agent used personal photos of a woman taken from her phone while she was in custody to impersonate her online without her consent. The photos included the woman posing in skimpy attire and pictures of her son and niece, both of whom are young children.

The absence of —and need for— regulation

How long should officers be permitted to investigate individuals without any evidence of specific criminal activities? Should having a criminal record mean your expectation of privacy online is forfeited?

At present, much of the regulatory work to address these questions is being done by social media platforms themselves—not the courts. According to Facebook, fake profiles are a violation of the platform’s community guidelines. The company claims it deletes these dummy profiles and has demanded that police officers discontinue their practice of creating fake accounts (though officers are still able to operate fake profiles for years).

Although Facebook’s policies ban fake social media profiles, many jurisdictions do not have policies in place for using social media for undercover work. Often leaving the issue to the individual officer’s discretion without much guidance. Meanwhile, courts in Delaware and New Jersey have permitted officers using fake social media profiles, even though doing so violated the guidelines of the social media platforms themselves.

The lack of regulation of such practices should give us pause given the opportunity for officers to abuse the tool, target individuals on the basis of protected characteristics, and engage in long-term monitoring with no specific investigative purpose.

A model policy for social media

Addressing the largely unregulated practice of police officers using social media as a tool for undercover investigations is not a simple task. One might rightly ask, what would regulating these actions look like?

To start with, we at the Policing Project believe that police departments themselves should have comprehensive (public) policies that cover the major issues, such as what rules govern when an officer can view information shared publicly versus information shared only with an individual’s connected friends. Further, an effective policy should demand a legitimate public safety or law enforcement purpose for the investigation. Departments must also prohibit monitoring social media accounts solely on the basis of an individual's race, religion or other protected group status, or First Amendment activities.

To help police departments and communities with this issue, the Policing Project is currently finalizing a model policy for social media investigations by law enforcement—one we hope will strike an appropriate balance between public safety and individual privacy.

This post was written by Policing Project externs Miranda Murillo, Leah Rosenberg and Michael Rebuck.

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