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The Courts The Internet

Judge: It's OK For Cops To Create Fake Instagram Accounts 209

Posted by samzenpus from the pay-no-attention-to-the-man-behind-the-ip-address dept.
An anonymous reader writes with a ruling that seems obvious in a case about police making a fake Instagram account. A federal judge in New Jersey has signed off on the practice of law enforcement using a fake Instagram account in order to become "friends" with a suspect — thus obtaining photos and other information that a person posts to their account. "No search warrant is required for the consensual sharing of this type of information," United States District Judge William Martini wrote in an opinion published last Tuesday. In other news, an undercover officer still doesn't need to tell you that he or she is a member of law enforcement if you ask.
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Judge: It's OK For Cops To Create Fake Instagram Accounts More

Judge: It's OK For Cops To Create Fake Instagram Accounts

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  • Not seeing the issue here (Score:5, Insightful)

    by LordLimecat ( 1103839 ) on Sunday December 21, 2014 @02:52PM (#48647631)

    Is anyone confused by the fact that cops can lie in the course of their work? Because thats something everyone should be crystal clear on: they can.

    Or maybe people dont understand that things you share with a cop, even "off the record", can be on the record. That, too, is a myth that should be dispelled.

    • Re:Not seeing the issue here (Score:5, Insightful)

      by spire3661 ( 1038968 ) on Sunday December 21, 2014 @03:10PM (#48647729) Journal
      Cops should NEVER be allowed to lie outside of specific, warrant backed undercover operations. I will never understand when it became ok for those charged with enforcing the law to lie without shame.

      • Re:Not seeing the issue here (Score:5, Insightful)

        by johnlcallaway ( 165670 ) on Sunday December 21, 2014 @03:39PM (#48647849)

        When you can get the criminals to do the same, I'll agree with you. To require police officers to be 100% honest is just a naive statement from someone who appears to be totally ignorant about how the world around them is.

        If someone is stupid enough to tell the details of something illegal to someone they have never meant via the Internet, they deserve to be locked up.

        If someone who didn't do anything is stupid enough to admit to it because the police said they have evidence, <sarcasm>maybe they should be locked up</sarcasm>. The world is obviously too dangerous for someone with so little self-confidence and personal courage to live in.

        • I will never understand this argument. Citizens are not bound like police are. I enjoy liberties the police never can. My liberty should ALWAYS exceed the police's.
          • "SHOULD", though unfortunately the reality is rather the inverse of your ideal, even though I suspect that I and most other people would agree with your sentiment.

          • . I enjoy liberties the police never can. My liberty should ALWAYS exceed the police's.

            So you like dressing in the uniform of your local police department*, driving over the speed limit with your siren blaring, and arresting people?

            *Often illegal unless you are actually a member of the police force.

            • The police do not have this liberty either. They are not permitted to drive around and arresting anyone they please.

            • So you like dressing in the uniform of your local police department*, driving over the speed limit with your siren blaring, and arresting people?

              that is not a liberty, but job description of "police officer". Liberty != job of person.

        • Re:Not seeing the issue here (Score:5, Insightful)

          by rtb61 ( 674572 ) on Sunday December 21, 2014 @06:46PM (#48648855) Homepage

          The primary duty of police officers is to assist the public in upholding the law. Having a police force that can legally lie at will does to do anything to help establish a rapport between the police and the public they are meant to serve and protect. It is all about professionalism versus a cowboy sheriff attitude. If you can not trust your police force to tell you the truth then exactly what the fuck have you really achieved?

        • Re:Not seeing the issue here (Score:4, Interesting)

          by Uberbah ( 647458 ) on Monday December 22, 2014 @01:26AM (#48650373)

          When you can get the criminals to do the same, I'll agree with you.

          When the Feds stop charging people for lying to federal investigators, I'll agree with you. Either both citizens and officials are allowed to be dishonest - outside of being under oath in a court of law - or neither one is.

      • Re:Not seeing the issue here (Score:5, Insightful)

        by Spamalope ( 91802 ) on Sunday December 21, 2014 @03:59PM (#48647957)

        I will never understand when it became ok for those charged with enforcing the law to lie without shame.

        Then in court these professional liars are held up as the most credible of witnesses.

        • Jurors are supposed to consider the testimony of a cop as no more or less credible than any citizen. If you're in jury selection and say you trust cops, or that you don't trust cops, you will be dismissed for cause.

        • Negative. When I served on a jury, the judge *specifically* instructed us that we were not to lend any more credence to the testimony of a police officer than to any other person, solely because he/she was an officer. During jury selection, anybody who either would never trust a cop *or* would *always* trust a cop was dismissed.

          That said, we trusted the cops anyway, because their story made a lot more sense than the guy and his wife saying "nuh-uh, that meth wasn't mine, bro," with no other evidence or witn

      • outside of specific, warrant backed undercover operations.

        Under cover operations are not searches or seizures so warrants do not apply.

      • Because far too many of them have little to no regard for the law or it's spirit and intent, but only when it applies to them.
        • "Far too many of them". Nice and vague. It's also the kind of phrase that can be used against any statistic except perfection. "We only found one half of one percent fit that definition." "That's far too many."

          "Most of" the cops I know are decent and honest men who want to guard their communities. There, your vagueness only supported by personal assertion has been countered by mine.

      • Cops should NEVER be allowed to lie outside of specific, warrant backed undercover operations. I will never understand when it became ok for those charged with enforcing the law to lie without shame.

        Lying, by itself, is not a crime. So why should they not be able to lie?

        Generally speaking, they may not commit a crime in their pursuit to solve or prevent crimes. Police don't have diplomatic immunity. Again generally speaking, the same laws that apply to you also apply to them too.

        What they are NOT allowed to do is commit crimes. They might be able to lie, but not commit fraud or "entrap", which basically means to talk or fool someone into doing something illegal they would not normally do.

        In on

        • Actually, yes, cops are allowed to commit crimes while undercover. They can't hurt anyone, but they can absolutely go sell drugs or something.

          There's also a frequent misunderstanding of what entrapment entails. Entrapment is about the state corrupting or coercing someone to commit crime. Entrapment is about the overriding of your free will. But they can ask, lie, beg, bribe, whatever. So long as you're free to say no without negative consequences, it's fine.

          And I'm fine with that. Most of the time what peop

      • Re:Not seeing the issue here (Score:5, Insightful)

        by davydagger ( 2566757 ) on Sunday December 21, 2014 @07:40PM (#48649149)
        because of the "war on drugs, war on crime", they got a whole people scared into giving up their civil rights decades ago, and we now think this is normal. Anytime someone gets a group together to oppose this, they are harrassed by the cops using the same techniques, and made an example of. We are taught in schools, and re-enforced in the media, there is no line between dissent, and rebellion, rebellion and crime, and crime and oppression. The government is our friends, and all critics are criminals. We give a really wide benefit of the doubt to cops.

        We create a whole list of fear words like junkie, terrorist, psycho, of which we see a whole underclass ready to swallow society, and the government's wrongs, slight and only exiting to protect us from imaginary enemies. We have TV news shows telling us how we are all the privledged class, and social justice is aimed as us, not the system, while simultaneously misdirecting citizens at eachother.

        Our political movements create conspiracies against eachother, and exhonorate the guilty.

        Truth is, you're more likely to be shot by a police officer than a crazy on a spree shooting. More likely to die from a hand gun than an infantry rifle, and more likely to be killed by obeiseity than recreational drug use.(3 times as likely)

    • Is anyone confused by the fact that cops can lie in the course of their work? Because thats something everyone should be crystal clear on: they can.

      Or maybe people dont understand that things you share with a cop, even "off the record", can be on the record. That, too, is a myth that should be dispelled.

      What I don't understand is why it's okay for cops to lie to people, but if people lie to cops, they can go to prison. Remember Martha Stewart? The only thing she was ultimately convicted on was lying to police. It seems it should work both ways: either you can't lie to cops and they can't lie to you, or both should be allowed to lie. The current system seems unbalanced.

  • Sounds fine by me (Score:5, Insightful)

    by Kjella ( 173770 ) on Sunday December 21, 2014 @02:55PM (#48647655) Homepage

    As long as the character they create is entirely fictional and not based on impersonating someone they know is a friend of the suspect, I'm fine with it. Cops running around trying to "friend" people in my name is not.

    • I think the police should have exactly as much or little right to create a fake account on a site as any other person does.

      Impersonating someone real should be illegal if it isn't already .

      • (ianal) That's usually called Identity Theft, and since they like to use those accounts to try and snuggle up to nasty criminals (drug dealers, gun runners, etc, definitely not jaywalkers or serial litterers) they are also pointlessly and needlessly putting someone else in danger without their knowledge or consent which is Reckless Endangerment. Both Identity Theft and Reckless Endangerment are crimes. So yes, it's already illegal, but guess what, who's going to arrest the cops?

  • Why wouldn't it be? (Score:3)

    by cascadingstylesheet ( 140919 ) on Sunday December 21, 2014 @02:57PM (#48647665) Journal
    Oh yeah, because it's "on the Internet".

    • Re: Why wouldn't it be? (Score:5, Interesting)

      by bill_mcgonigle ( 4333 ) * on Sunday December 21, 2014 @03:24PM (#48647781) Homepage Journal

      Because it's identity fraud which is illegal and it's violating the ToS, which is contract fraud, which is illegal. Well, illegal for the plantation workers, anyhow.

      • Could someone with a little law school please respond to this? Is lying to instagram and violating their terms Civil or Criminal?

        • Re: (Score:2)

          by Khyber ( 864651 )

          Both. Falsely assuming the identity of a living person is identity theft (criminal,) and violating a contract is breach of contract (civil.)

          • Re: (Score:2)

            by mark-t ( 151149 )

            Legally speaking, identity theft is the assumption of another person's identity for the purposes of defrauding either that individual or some agency.

            It's my understanding that purpose, when used in legalese and referring to criminal activity, simply refers to any intent on the part of the perpetrator, or any intent that can reasonably be assumed, barring extenuating circumstances, and additionally may even include even entirely unintentional consequences that happen to arise or else are very likely to ari

        • Could someone with a little law school please respond to this? Is lying to instagram and violating their terms Civil or Criminal?

          IANAL, but there have been a number of cases where federal prosecutors have decided that a TOS violation constitutes a crime under the CFAA (Computer Fraud and Abuse Act). I don't think anyone has yet fought this one in the courts, so it may not stand up to judicial scrutiny, but it is most definitely used as the "stick" to convince someone to accept a plea bargain.

          Needless to say,*that* particular interpretation of the law isn't likely to be used against a cop unless that particular cop seriously pisses o

          • I don't think anyone has yet fought this one in the courts, so it may not stand up to judicial scrutiny, but it is most definitely used as the "stick" to convince someone to accept a plea bargain.

            Have you been living under a rock the last 5 years?

            Yes, prosecutors have tried to use the TOS thing as an excuse to prosecute. But that is being actively fought by EFF, EPIC, and a whole alphabet soup of other organizations acting as amici to the courts, and with actual legal defense as well.

            It is pretty clear that Congress never meant the law to apply to situations like Aaron Swartz, for example. Government prosecutors have been fighting actually getting that one to court though because they know the

      • Reminder that SCOTUS has just ruled that law enforcement's ignorance of the law is a valid excuse.

  • ...if you have the ability to change the law to suit your needs.

    • Re: (Score:2)

      by gnupun ( 752725 )

      ...if you have the ability to change the law such that it gets the job done and was standard practice IRL, before the internet was around.

      FTFY.

    • Re: (Score:2)

      by mark-t ( 151149 )
      Exactly what law is being broken when cops lie or create fake instagram accounts?

  • Try the opposite (Score:3)

    by Whorhay ( 1319089 ) on Sunday December 21, 2014 @03:11PM (#48647731)

    I've always wondered if anyone has tried the exact opposite of asking an undercover agent if they are a cop.

    Simply work under the assumption that everyone is a police or law enforcement officer. And only conduct business with them after signing legal contracts recognizing them as an agent of the law whereby they are authorizing your activity for some other lawful purpose like entrapping, errr I mean prosecuting someone else.

    • Your average cop can't authorise others to break the law.

    • That's an interesting thought. It occurs to me that there are only a few acts which would normally be criminal, but have exceptions for law enforcement purposes. As one obvious example, a cop can't authorize murder, and everyone pretty much knows that. A cop can't authorize robbery.

      For those things a court can authorize via a warrant, such as a search that would otherwise be trespassing, the defendant would need to have a "reasonable belief " that the conduct was in fact lawful. Having your buddy sign

      • Having a habit of asking all of your criminal buddies to sign such a statement, and signing it yourself claiming that you are a cop, would tend to show that you know it's a sham.

        But it's not a sham for the hypothetical real cop. The fact that all the documents signed by non-cops were sham documents isn't important.

        Note: don't get your legal advice from /. -- it's likely to be wrong.

        • What matters is whether the defendant has a "reasonable belief " that their conduct is authorized and lawful. The question isn't whether or not the statement is TRUE, not for the sham "cops" or the real cop. The defendant doesn't THINK that it's true in either case. They think they're perpetrating a burgalry, not executing a search warrant. Since they don't know of any actual search warrant, they've committed burgalry- even if there actually was a cop, and a search warrant. The warrant they didn't

        • here's a real-life case to explain criminal intent (Score:5, Insightful)

          by raymorris ( 2726007 ) on Sunday December 21, 2014 @05:10PM (#48648341) Journal

          I'll try explaining it the other way around, with a real-life case. There have been several cases that fit this pattern.

          A cop wants to bust a bad guy. That cop gets his wife, a teacher, to pretend to be the DA and tell the bad guy he's authorized to do $crime. Cop busts the bad guy.

          In court, bad guy says "the DA said I could ... at least, I thought she was the DA. The real DA replies "I never said a word to the guy. Some teacher said it was authorized, but she has no authority to authorize anything."

          In such case, the courts have consistently held that the defendant is not guilty, because they THOUGHT that their actions were authorized and therefore lawful.*

          So you see it doesn't matter if the person "authorizing" it is really a cop, a teacher, or a DA. What matters is what the defendant BELIEVES - whether they are trying to commit an act that is criminal or they are trying to aid law enforcement. The legal term is "mens rea", which means "guilty mind",'also known as "criminal intent ".

          You are free to think that the courts should have done the opposite and found the person guilty when the "DA" actually isn't a DA. You can think it's wrong or right, but what actually sends people to prison or not in such cases is their actual belief - did they believe their act was authorized or not. The actual identity of the authorizing party does not matter under law.

          * This mention of mistaken belief reminds some people of the phrase "ignorance of the law is no excuse". Ignorance of the LAW generally isn't an excuse, but mistake of FACT IS an excuse. "I didn't know poisoning my husband counts as murder" is no good. "The bottle said 'blueberry syrup', so I thought it really was blueberry syrup that I put on his food" is a valid defense. Here we're talking about mistake of fact - the defendant thought the person was (or was not) a proper authority.

          • Not all 4 legged animals are dogs and I don't think that your reversal of the scenario proves the point.

            Can a court really throw out a document, signed by a genuine cop authorizing the person to commit a crime? The cop knowingly signed the document. Isn't this more important than the beliefs of the thief? The thief could explain his belief as "I thought that I was authorized if any one of us was a cop". So, his belief is premised on a factual basis that happened to be unlikely, but true.

            Niether your opinion

          • Ignorance of the LAW generally isn't an excuse, but mistake of FACT IS an excuse.

            Unfortunately, though, we now have far too many laws, including contradictory laws. Even if somebody had their own legal library, every year some things change. A hypothetical typical, reasonable citizen could not possibly know them all, much less be reasonably expected to. They wouldn't have time to do anything else.

            So here's my question: since our common law system is supposed to be based on the reasonable man principle, and it is provably not reasonable to expect the average citizen to know most laws,

      • Given that this entire thread is about police lying (and getting away with it), I think your suggestion is silly.

  • I.D. Please (Score:5, Interesting)

    by magusxxx ( 751600 ) <(moc.oohay) (ta) (0002_xxxsugam)> on Sunday December 21, 2014 @03:17PM (#48647755)
    Let's say I own an internet business. I notice that a profile is fake and delete it off the system. Suddenly, I'm told by the police it was theirs. And, if I don't put it back up it's obstruction of justice. Note: Told to do so, not "here's a court order." Does the ruling make this scenario feasible? And if so, what is the liability for the company if they do or don't make the account viable again.

    • And if so, what is the liability for the company if they do or don't make the account viable again.

      IANAL, but my understanding is that you are not generally required to go out of your way to assist the police. You are not a policeman, you aren't being paid to be one.

      Even phone companies insist on payment for allowing wiretaps, or government requests for information. And even those are only mandatory because there are specific laws that say so (such as CALEA).

  • Hmmm ... (Score:3)

    by gstoddart ( 321705 ) on Sunday December 21, 2014 @04:51PM (#48648239) Homepage

    So, in this judges opinion, can we make a fake Instagram account for him or the police?

    Or is this act of lying purely something they reserve for themselves?

    Because, you know, maybe this judge should start sharing his fondness for sheep and Barbie dolls.

    Oh, wait ... if we did it, it would be a crime. And, I'm sorry, but if it's a crime for us, then you should have some form of prior authorization.

    Otherwise this judge has said "we can commit crimes, you can't" ... which will pretty much confirm that the law deems themselves above it. In which case this judge's new Instagram account should be interesting to see.

    • There is a big difference between creating a fictional character and impersonating an individual (identity theft)

    • There is no evidence in the ruling that the police used the identity of a real person to "friend" the suspect. It is legal for a create an insatgram account for a fictitious person.

  • Justice Louis D Brandeis (Score:4, Informative)

    by Tokolosh ( 1256448 ) on Sunday December 21, 2014 @06:05PM (#48648665)

    "Our government... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

    "To declare that in the administration of criminal law the end justifies the means to declare that the Government may commit crimes in order to secure conviction of a private criminal would bring terrible retribution."

    "The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding."

  • Fine - but not impersonate peolpe (Score:3)

    by gurps_npc ( 621217 ) on Monday December 22, 2014 @11:29AM (#48652107) Homepage
    I am (and probably most people) totally OK with the cops creating fake internet accounts to catch criminals. Nothing wrong with that. What is more troubling is the attempts of some cops to take impersonate actual living people on internet accounts and use THAT to catch criminals.

    That should be illegal - at least without the express written consent of the people being impersonated.

    Yes, the cops have done this and the person sued. I would love to hear what happened in that law suit, because impersonating someone else is a very different matter from creating a fake account.

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