Investigation Finds Federal Law Enforcement Uses Social Networking to Solve Crimes

March 29, 2010 by David S. Seltzer

Because of my work as a Miami-Dade cyber crime criminal defense lawyer, I knew that many states are scrutinizing sex offenders’ use of social networking sites, or placing restrictions on their use. So I was interested to see a March 16 article from the Associated Press saying the FBI and other law enforcement agencies are using social networking sites to solve some crimes. The news comes from the Electronic Frontier Foundation, a nonprofit that tracks Internet privacy and freedom issues. The EFF and a UC Berkeley law clinic filed Freedom of Information Act requests to see how several federal law enforcement agencies are using social networking. Thus far, it has documents from the Department of Justice and the IRS, which are freely viewable online.

The EFF told the AP that it’s concerned about online overreaching by law enforcement officials. Investigators can and do already look at public social networking profiles -- for example, to see whether suspects have posted pictures of items bought with the profits from crime. They can also figure out who the target’s friends or relatives are. In fact, the FBI has already used Facebook to find at least one defendant, a bank fraud defendant who fled to Mexico. By going through his friends list, which cannot be hidden, agents found someone who helped them determine where he was.

However, the article raises the possibility that agents may also make false profiles and use them to befriend targets of their investigations. This is a violation of the terms of service at most sites, which is what MySpace “cyberbullying” defendant Lori Drew was accused of. The judge in that case eventually overturned the verdicts against Drew, saying the law was too vague, and it’s not clear whether this would be illegal for agents to do. A former prosecutor told the AP that agents should be able to go undercover online just as they would in person, but they shouldn’t do anything they wouldn’t be able to do in person, such as impersonate the target’s spouse.

As a West Palm Beach cyber crime criminal defense attorney, I believe this is another area where technology has outpaced the law. As the Lori Drew case shows, there are still some online behaviors that courts are genuinely not sure whether to criminalize. Older rulings give law enforcement agencies the right to impersonate children in chat rooms, but for the most part, agencies are making their own rules. In my experience as a defense lawyer and former prosecutor, I suspect that means that they’ll place as little restriction on their behavior as they must. The article didn’t mention the IRS documents, but the EFF praised the IRS for making clear, detailed rules about what behaviors are expected of investigators. Other agencies said nothing at all on the subject.

As a Fort Lauderdale cyber crime criminal defense lawyer, I suggest serious and immediate security measures for any of my clients who may be under surveillance. This applies to clients’ online lives just as much as it does the real world. On social networking sites, they should follow the same rules that anyone concerned about privacy might use, such as making their profiles as private as possible and not accepting friend requests from strangers. But as the story of the bank fraud defendant shows, agents don’t necessarily need to directly view a profile to get information about you from it. That’s why I hope the courts clarify these issues relatively soon.