Think Twice Before Going Undercover

Who would have thought that creating a fake profile on MySpace (a violation of their user agreement) could lead to a criminal conviction? The recent verdict in the case of Lori Drew concluded that she was guilty of computer fraud for doing just that. Of course the verdict was influenced by the belief that the email messages sent under the false identity contributed to a girl’s suicide, and certainly gave the impetus for the criminal charge.

Let this be a warning to information researchers and investigators who are collecting data on subjects through their social networking sites.

As part of my investigations I do passive information gathering on the Internet, like monitoring MySpace sites. Other investigators have asked me if they should create a profile to become a “friend” of someone who has a private MySpace page in order to get access to the full site. Before you do it you better be tech savvy so you can cover your footsteps.

Like with any other investigative action keep in mind: Is this legal and ethical? How would it be perceived by a jury? Will this be detrimental to the overall case? Are there unintended consequences that may reflect badly on my client?

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57 thoughts on “Think Twice Before Going Undercover

  1. My thoughts on this subject are that it is not as much of a worry as we seem to believe….

    Ask yourself this: (Are the FEDs going to charge you with a criminal violation of the MySpace TOS just for using a “pretexting account” for gathering information on a subject?)

    I don’t think so… Does anyone know what a Federal Investigation and Prosecution cost? Do you really believe that much money will be spent on the P.I. that is using a “pretexting account” to gather information on the subject of one of their investigations?

    In the case of Lori Drew, there was more to it than just setting up a bogus MySpace Account.. It went something like this:

    Lori Drew set up a false MySpace account for the purpose of willfully and maliciously tormenting and terrorizing a teenager that she knew suffered from depression… Lori Drew’s intent was to punish young Megan Meier by setting up a false MySpace account and causing her to develop an on-line relationship with a person that appeared to be in her peer group but actually was not, and then using this online relationship to cause Megan Meier great emotional distress.

    The result was that a young lady committed suicide. The result and the intent had as much to do with the prosecution as the violation of MySpace’s TOS.

    Having said this; I’d also say that one can gather information on the Internet about a subject of their investigation just as effectively without using a”pretexting account”; IF they know what they are doing…. There are multiple sites on the Internet that will allow you to “mine data” from these social networking sites. Google is a GREAT search engine, but it is not the “be all and end all” to searching for information on the Internet.

    Pretexting should be a last resort option.. And all of your other options should be thoroughly exhausted before pretexting is even considered.. If you are working a case that winds up in court, and you use any form of pretexting, you sure better be able to explain why it was necessary and be able to demonstrate that you exhausted all other options before you decided to use pretexting to gather information in your investigation. And remember, EVEN if you are completely legal in your pretext in a court case, you still run the risk of having the court frown upon your work, i.e. upsetting the Judge…

    Rick.

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