By Michael D. Silva, Police Legal Advisor, Tucson Police Department, Tucson, Arizona
t this point, every chief law enforcement officer in the country recognizes the power and prevalence of social media. Many employ their own agency-sponsored social networking sites (Facebook), micro-blogging sites (Twitter), and photo and video sharing sites (YouTube). Chiefs use these interactive online formats to spread their messages, raise public awareness on important law enforcement issues, and strengthen ties to their own virtual community. Chiefs are also well aware of the dangers of social networking, the perils of an employee—sworn or nonsworn—who inappropriately releases sensitive law enforcement information or posts impeachable material in one of these formats. This awareness likely led to implementing a policy that governs both department and employee use of social networks with an eye toward protecting the reputation of the agency and the credibility of its members. To be sure, these are necessary, in fact, fundamental, policy measures that cover important issues in social networking. However, they do not mark the policy end. Rather, they are queued at the social networking starting line. The race for social networking information is on, and investigators left the starting blocks long ago, whether it was realized or not.
Everybody Is Doing It
The question is not whether investigators are using social networking as an investigative tool, that is a given. The question is to what extent and in what manner is it being utilized. A recent survey of law enforcement officers at every level of government revealed that four out of five respondents use various social networking platforms in an investigatory capacity.1 Interestingly, agencies serving smaller populations and with fewer sworn personnel (fewer than 50) use social networks more, while state agencies tend to use them less (71 percent) than local (82 percent) and federal (81 percent) agencies.2
Social networking sites contain a treasure trove of accessible information that assists law enforcement in crime prevention, preservation of public order, and the investigation of ongoing criminal activity. Moreover, the applications are boundless. From narcotics sales and manufacturing, prostitution, and crimes against children to terrorist activity, social networking sites contain an information database that does not require investigators to passively wait for victim complaints, witness statements, or physical evidence to materialize.
What Is the Catch?
Any law enforcement officer, regardless of experience level or assignment, with a little motivation, a laptop, and Internet access can embark on a social network–based investigation by creating a fictitious online persona. With a couple dozen keystrokes, a few mouse clicks, and a picture “borrowed” from a random website, even the most junior officers could find themselves in control of a department-sponsored covert account. It is how they create that fictitious account and the manner in which they use it that are concerns. The integrity of the investigations, the security of the investigators, and the civil liability exposure of the agency hang in the balance.
Can They Do That?
Most, if not all, social networking sites include provisions within the terms of service that prohibit the use of the platform for willful impersonation. The creation of a fake online identity by anyone, including law enforcement, would likely qualify as the sort of rule infringement that could result in account termination.3 But, does this apparent rule violation make the practice illegal? The answer to that question lies in individual state law. At least six states currently criminalize electronic, online impersonation.4 The nature of the activity prohibited and elements of the crime vary from state to state, as does the inclusion of a law enforcement exemption.5 Additionally, at least one state created a civil cause of action, but thankfully chose to include an exception for law enforcement.6 Moving forward, other state legislatures seem poised to create their own laws.7 Ultimately, the answer to the question of “Can they do that?” may well be the one heard most from legal counsel: “It depends.”
What to Do?
If your state law permits such use, an intimate understanding of the social network investigations already ongoing throughout your agency is a vital first step. Consider conducting a department-wide survey of the current use of social networks in your investigations. Familiarizing yourself with the current practice not only allows for more thorough policy development but also puts staff in position to determine the level of training that policy implementation will require. In this regard, do not be surprised if you find that these social network investigations are being conducted with no guidance or training whatsoever.8 With the survey complete, you will be ready to put together a comprehensive policy. To that end, consider the following recommendations:
- Require investigators to submit a written request detailing the scope and purpose of any investigation necessitating the development of a fictitious online profile.
- Requests should include proposed usernames, email address, date of birth, and other information that will become part of the fictitious profile.
- Requests should include any photographs, video, or other media that will be associated with the fictitious profile. Special attention should be directed to the purpose and source of such media as well as to the securing of any necessary waivers or release documents.
- Establish an evaluative process for these requests at the command level. Every request should be analyzed to determine the investigatory purpose and need for undercover investigation.
- Maintain a record of all submitted requests, both approved and disapproved, in the agency record management system. As with any other agency-generated document, make sure to take into account your state public records laws.
- Establish protocols for which computer systems may be used for the development and management of fictitious profiles. Only systems with the requisite security features should be utilized in order to keep the fictitious profile from being traced back to your agency.
- Prohibit the use of personal, non-agency–established Internet accounts or Internet service provider access when using fictitious profiles.
- Ensure investigators are trained on how to legally access social network user accounts by way of subpoena, warrant, or other court order. This includes instruction on pertinent parts of the Stored Communications Act as well as individual social network policies.
- Ensure investigators are trained in the effective use of preservation and non-disclosure letters and understand when and how to get a social networking account shut down and preserved for evidentiary purposes. They should also be trained on how to capture information, including metadata, and how to properly preserve the chain of custody.
- Establish protocols for documenting and recording investigations activity and communications.
- Ensure investigators are trained in how to set tone, pace, and subject matter of online conversations in addition to other entrapment considerations.
- Establish clear procedures and approval protocol for any investigations that may involve political activity. These procedures should include consultation with the agency’s legal counsel.
At the end of the day, whatever policy considerations are implemented, your social networking investigations policy and the use of fictitious profiles should generally mirror that of your conventional undercover investigations. Employing this strategy may go a long way in keeping your social network investigations from crossing any well-settled legal lines. ♦
1See The Use of Social Media in Investigations, survey of 1,200 federal, state, and local law enforcement professionals (LexisNexis, March 2012), which can be downloaded from LexisNexis at www.lexisnexis.com/government/investigations (accessed March 29, 2013).
3Facebook, “Statement of Rights and Responsibilities,” www.facebook.com/legal/terms; and Twitter, “The Twitter Rules,” https://support.twitter.com/articles/18311-the-twitter-rules (both accessed March 29, 2013).
4See, Tex. Penal Code Ann. § 33.07; Cal. Penal Code § 528.5; La. Rev. Stat. Ann. § 14:73.10; N.Y. Penal Law § 190.25; Miss. Code. Ann. § 97-45-33; Haw. Rev. Stat. § 711-1106.6; and Wyo. Stat. Ann. § 6-3-902.
6See, Wash. Rev. Code Ann. § 4.24.790.
7Arizona, Pennsylvania, and West Virginia are poised to create their own laws.
8See, The Use of Social Media in Investigations, 11, where only 10 percent of those surveyed had received formal training on how to use social media for investigations.
Please cite as:
Michael D. Silva, "Undercover Online: Why Your Agency Needs a Social Network Investigations Policy," Chief’s Counsel, The Police Chief 80 (May 2013): 1213.