Undercover Cops Break Facebook Rules to Track Protesters, Ensnare Criminals

In the summer of 2015, as Memphis exploded with protests over the police killing of a 19-year-old man, activists began hearing on Facebook from someone called Bob Smith. The name was generic, and so was his profile picture: a Guy Fawkes mask, the symbol of anti-government dissent.

Smith acted as if he supported the protesters, and, slowly, they let him into their online community. Over the next three years, dozens of them accepted his friend requests, allowing him to observe private discussions over marches, rallies and demonstrations. In public postings and private messages he described himself as a far-left Democrat, a “fellow protester” and a “man of color.”

But Smith was not real. He was the creation of a white detective in the Memphis Police Department’s Office of Homeland Security whose job was to keep tabs on local activists across the spectrum, from Black Lives Matter to Confederate sympathizers.

The detective, Tim Reynolds, outed himself in August under questioning by the American Civil Liberties Union of Tennessee, which sued the police department for allegedly violating a 1978 agreement that prohibited police from conducting surveillance of lawful protests. The revelation validated many activists’ distrust of local authorities. It also provided a rare look into the ways American law enforcement operates online, taking advantage of a loosely regulated social media landscape — and citizens’ casual relinquishing of their privacy — to expand monitoring of the public.

Police officers around the country, in departments large and small, working for federal, state and local agencies, use undercover Facebook accounts to watch protesters, track gang members, lure child predators and snare thieves, according to court records, police trainers and officers themselves. Some maintain several of these accounts at a time. The tactic violates Facebook’s terms of use, and the company says it disables fake accounts whenever it discovers them. But that is about all it can do: Fake accounts are not against the law, and the information gleaned by the police can be used as evidence in criminal and civil cases.

Investigators know this, which is why the accounts continue to flourish.

“Every high-tech crime unit has one,” said an officer who uses an undercover account to monitor gang members and drug dealers in New Jersey and who spoke on the condition of anonymity to avoid having the account exposed or shut down. “It’s not uncommon, but we don’t like to talk about it too much.”

The proliferation of fake Facebook accounts and other means of social media monitoring ─ including the use of software to crunch data about people’s online activity ─ illustrates a policing “revolution” that has allowed authorities to not only track people but also map out their networks, said Rachel Levinson-Waldman, senior counsel at New York University School of Law’s Brennan Center for Justice.

She is among many scholars who worry that expanded social media surveillance could make people less likely to engage in online activities protected by the First Amendment, from sharing their opinions to organizing protests of the government. But there are few laws governing this kind of monitoring. Few courts have taken up the issue. And most police departments don’t have policies on how officers can use social media for investigations, according to Levinson-Waldman’s research.

“It’s pretty open territory,” she said.

Judges in New Jersey and Delaware have upheld investigators’ use of fake social media profiles. U.S. Immigration and Customs Enforcement, the Cincinnati Police Department and the Chicago Police Department have publicly boasted of using undercover Facebook accounts in cases against accused child predators, gangs and gun traffickers. Following an outcry after a Drug Enforcement Administration agent created a fake Facebook account in a suspect’s name to catch members of a drug ring, the Department of Justice promised in 2014 to review the agency’s policies ─ but the department did not respond to multiple requests to say what has changed.

Several law enforcement agencies, including the New York Police Department, the Georgia Bureau of Investigation and the Indiana Intelligence Fusion Center, have policies that explicitly allow the creation of fake profiles, with some conditions ─ including obtaining prior approval from a superior and limiting interactions with targets.

The only reprisals come from Facebook itself, which says it strictly enforces its ban on users pretending to be someone they’re not. Every day, it says, the company’s “detection technology” blocks millions of attempts to create fake accounts ─ and detects millions more within minutes of creation. But Facebook won’t say how often it has taken action against a law enforcement agency for using fake accounts, only that it has done so “many times.”

Despite this, police agencies have been able to keep undercover accounts for years without Facebook discovering them.

“I’m skeptical that law enforcement is going to look at Facebook saying this and suddenly change their practices,” said Dave Maass, an investigative researcher at the Electronic Frontier Foundation, a civil liberties group.

Facebook took action against the Memphis Police Department only after the foundation alerted the company to coverage of the Bob Smith account on The Appeal, a criminal justice website. Facebook disabled the Smith account and then found six more fake accounts linked to the department, which it also cut off.

The Memphis Police Department declined to comment about its use of social media, including the Bob Smith account, noting that the lawsuit alleging illegal surveillance remains unresolved. In July, city officials insisted that the police had not violated anyone’s rights, or prevented anyone from demonstrating.

Monitoring social media posts, the city said in a statement, “is a necessary and common technique in law enforcement; in fact it is viewed as best practice.”

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