May an Officer Assume a False Identity Online in Order to “Friend” a Suspect?

Officers are allowed to misrepresent their identities in the course of their investigations: they may pose as drug buyers, or prostitutes, or members of an organized crime syndicate. Is the same thing true online? In other words, may an officer claim to be someone else in order to “friend” a suspect on social media and thereby gain access to whatever information the suspect has posted? The answer isn’t clear yet, but I would guess that courts ultimately will say yes. The practice seems to be widespread. The United States Department of Justice wrote this guide to social media for law enforcement. The guide notes that “[l]aw enforcement agencies across the country apparently are moving to use social media in investigations.” For example, the New York Times reports here that New York City police “follow [gang] members on Twitter and Instagram, or friend them on Facebook, pretending to be young women to get around privacy settings that limit what can be seen.” The DOJ guide cites a law enforcement survey in which more than 80 percent of respondents agreed that “creating personas or profiles on social media outlets for use in law enforcement activities is ethical.” The legal status of the conduct is not settled. The DOJ states that an “unresolved issue is whether it is constitutionally permissible for police to set up fictitious identities in Facebook accounts or other social media in order to obtain photos, videos, and other content posted by other Facebook users.” I am not aware of North [...]