Next week the U. S. District Court of California will issue the sentence for Lori Drew, the MySpace “cyberbully” who was convicted of violating the MySpace terms of service when she created a false profile. [See my article, Think Twice Before Going Undercover.] In that piece I talk about some of the considerations for the investigator who is tempted to fabricate an identity on a social networking site in order to gain access to a user’s otherwise private profile.
Here’s a legal issue to mull over. Perhaps this applies in other states, but in California, in criminal cases, the criminal defense investigator or prosecution investigator can’t interview a potential witness without first “clearly identifying himself or herself.” This is found in California Penal Code 1054.8:
1054.8. (a) No prosecuting attorney, attorney for the defendant, or investigator for either the prosecution or the defendant shall interview, question, or speak to a victim or witness whose name has been disclosed by the opposing party pursuant to Section 1054.1 or 1054.3 without first clearly identifying himself or herself, identifying the full name of the agency by whom he or she is employed, and identifying whether he or she represents, or has been retained by, the prosecution or the defendant. If the interview takes place in person, the party shall also show the victim or witness a business card, official badge, or other form of official identification before commencing the interview or questioning.
(b) Upon a showing that a person has failed to comply with this section, a court may issue any order authorized by Section 1054.5.
A violation could lead to the exclusion of the evidence obtained from that interview. Isn’t the investigator attempting to “interview, question, or speak” to a witness when the investigator accesses the witness’s non-public social network profile? The private profile requires the participants be accepted as “friends” and is a mouthpiece for the account holder to speak to her selected audience. The investigator who disguises his identity to pry open that witness’s cyber door could risk the exclusion of any evidence gathered through that pretext, as well as picking up a misdemeanor.