by Anthony W. Accurso
One police tactic that is quickly gaining traction involves surveilling social media posts on sites like Facebook and Twitter, but Facebook (now Meta) is reminding police that fake (or “dummy”) accounts are not allowed.
Police have always been allowed to view public posts by Facebook users, but several years ago, officers began creating profiles using false information for the purposes of “friending” suspects to gain access to their private posts. In 2018, Facebook warned law enforcement that creating these fake profiles is against its policy (for everyone, and police aren’t exempt). Apparently, the cops didn’t take the memo seriously.
Recent investigating by the Brennan Center for Justice and Media found that the LAPD was not only creating dummy accounts and using them to monitor the social media feeds of innocent persons, but the LAPD also created internal instructional documents showing how to create dummy accounts while specifically using Facebook as an example.
When the Brennan Center brought this to Facebook’s attention, Facebook published an open letter, specifically addressing the LAPD—reminding them that this practice “violate[s] our terms of service.”
“While the legitimacy of such policies may be up to the LAPD, officers must abide by Facebook’s policies when creating accounts on our service,” the letter continued. “The Police Department should cease all activities on Facebook that involve the use of fake accounts, impersonation of others, and collection of data for surveillance purposes.”
The letter also made it known that the LAPD was purchasing data, obtained on Facebook by third party “research” firms, for surveillance. This is a violation of Facebook policy as well.
“Under our policies, developers are prohibited from using data obtained on our platforms for surveillance, including the processing of platform data about people, groups, or events for law enforcement or national security purposes,” according to the letter.
As to what happens next, it is entirely within Facebook’s discretion. While its service may have the ubiquity and feel of a public utility, it is still a service provided by a private company that can do (almost) whatever it wants to do with its platform.
So far, it has only threatened to delete dummy accounts and ban developers who use their access for surveillance. While it may be inconvenient, and police might openly complain, officers will simply create more dummy accounts and continue flaunting Facebook’s policy.
The Computer Fraud and Abuse Act has been touted by the government as a vehicle it could use to prosecute violations of a computer service provider’s terms of service, though the Supreme Court has not weighed in on this issue specifically, and it is unlikely to be used to prosecute police for doing so.
Ambiguities in the law used by police to circumvent Fourth Amendment protections must eventually be addressed by lawmakers, not courts. Police can always get a warrant for a user’s data if there is probable cause to suspect that person of engaging in criminal activity, but they should not be allowed to spy on innocent (until proven guilty) citizens en masse simply because they can.
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