Skip navigation
Disciplinary Self-Help Litigation Manual - Header
× You have 2 more free articles available this month. Subscribe today.

DHS Allows CBP and ICE Officers to Create Fake Social Media Profiles to Track Subjects of Interest and Conduct Investigations

by Jo Ellen Nott

The Brennan Center for Justice, a civil rights non-profit law and public policy group, has learned that authorities in several Department of Homeland Security (“DHS”) law enforcement agencies are using fake accounts on social media platforms to conduct investigations. Civil rights groups and some legislators criticize this practice, arguing it violates people’s privacy and could lead to wrongful arrests.

In documents the Brennan Center obtained through open records requests, agency officials frequently discuss using aliases or undercover online accounts to investigate persons of interest. The documents also reveal that some officials expressed concerns about platforms’ policies prohibiting the use of fake profiles.

The Brennan Center’s discovery of the use of fake profiles adds to the growing privacy concerns about how law enforcement monitors our online interactions and collects and then shares our data. Of more concern is that this surveillance is done without a warrant of subpoena.

According to The Guardian, in recent history, police “have used fake accounts to spy on Black Lives Matter protesters; pose as ordinary citizens and post comments attacking law enforcement critics; and send Facebook friend requests to targets of their investigations and then gather personal information without a judge’s approval for the digital search.” Furthermore, Facebook executives raised objections with the Los Angeles and Memphis police departments for using these tactics, and new records reveal Facebook privately reprimanded the DHS.

The DHS’ use of fake social media profiles was first revealed in 2019, when Facebook contacted the agency due to concerns about Customs and Border Protection “expanding its use of social media platforms.” Facebook officials said that the use of fake profiles is a violation of the company’s terms of service agreement. Despite Facebook’s objections, the DHS has continued to use fake social media profiles. In 2022, Meta, Facebook’s parent company, released a report stating that using “fake profiles and software tools to scrape information from Facebook to aid with surveillance is a common tactic.”

Meta has made its authenticity policies clear, said Roy L. Austin, company vice-president and deputy general counsel for civil rights. Austin told The Guardian that the company requires everyone, including law enforcement, “to use their authentic name they go by in everyday life on Facebook, and that this policy is clear in our community standards.” Austin added, “It is our intention to make sure that people can continue using our platforms free from unlawful surveillance by the government or agents acting in inauthentic ways.”

 DHS’ use of fake social media profiles raises several concerns. First, it is a violation of people’s privacy. When people use social media, they do so with the expectation that their conversations are semi-private, or at least not actively monitored by law enforcement, and certainly not with the expectation that they may be unknowingly communicating with an undercover law enforcement officer. The DHS’ use of fake social media profiles violates this expectation.

Secondly, the DHS’ use of fake social media profiles could lead to people being wrongly accused of crimes. The DHS has said that it only collects publicly available information from social media. However, this information can be easily misinterpreted. For example, a person who posts something critical of the government on social media could be targeted by the DHS, even if they have not committed any crime.

Finally, the DHS’ use of fake social media profiles could have a chilling effect on free speech. People may be less likely to express themselves freely online if they know that the government is lurking in the shadows. DHS, however, believes that the benefits of using fake social accounts outweigh the risks.

TechDirt points out that despite the significant concerns, social media surveillance shows no signs of being reined in any time soon. The documents obtained by the Brennan Center show that Customs and Border Protection is “still allowed to create fake profiles to passively monitor public Facebook posts.” Immigration and Customs Enforcement (“ICE”) takes the surveillance a bit further. ICE has “explicit permission to create fake accounts to engage in undercover investigations as long as the online tactics are somewhat analogous to undercover activities agents carry out in the real world.” Thus, Americans must now be vigilant and protect themselves against being catfished by both online scammers and law enforcement.  

 

Sources: The Guardian, TechDirt

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

 

 

The Habeas Citebook Ineffective Counsel Side
Advertise here
The Habeas Citebook Ineffective Counsel Side