Facebook tells police not to create fake profiles

After learning Memphis law enforcement used fake Facebook accounts to monitor local Black Lives Matter activists, Facebook’s Menlo Park-based associate general counsel wrote a letter to the police department condemning it, but no legal action was taken because the widespread practice has not been found to be illegal.

The letter was sent last month by Andrea Kirkpatrick, Facebook director as well as counsel, informing them that the fake accounts had been deactivated and violated Facebook’s terms of service.

According to New York-based data privacy attorney James Mariani of Frankfurt Kurnit Klein & Selz PC, the practice of using fake social media accounts to monitor individuals and collect evidence is not illegal and is widely used throughout the country at law enforcement offices of every level.

“The idea of law enforcement impersonating others online is not exactly new. It’s been done for more than 10 years,” Mariani said.

Criminal defense attorney William Kroger of William Kroger Attorney at Law in Beverly Hills, said police using fake social media accounts to catch criminals is “the same thing undercover investigators do when investigating biker gangs in person. ... They don’t have to tell you they’re cops.”

The question Mariani asked is: Does the practice of surreptitiously monitoring activists violate the First Amendment by creating a chilling effect on those who would otherwise express discontent online?

The ACLU in Tennessee believes so. It filed a lawsuit against the city of Memphis in 2017, contending a list of people who now require a police escort while visiting City Hall, compiled from information gathered by monitoring Facebook groups, violates the First Amendment.

“The case they could have is whether these practices are chilling speech or not,” Mariani said.

“The creation of a police escort list based on people’s speech, assembly, or associations would clearly chill protected expression, in violation of the First Amendment,” said ACLU Tennessee legal director Thomas H. Castelli in a 2017 statement.

According to the complaint, in the summer of 2015, as protests erupted in Memphis over the police killing of a 19-year-old man, a Memphis police officer covertly surveilled groups engaged in free speech activities electronically through an account with the user name of Bob Smith.

“Smith” pretended to be a Black Lives Matter activist and over the course of a few years infiltrated the organization and gathered information from private messages and group posts, the complaint alleged. The information was then used to compile a list of people who would then be considered heightened security risks at city hall, according to the complaint.

In response to an email inquiry, a Facebook spokesperson said, “We don’t permit people to use fake accounts on our service, including police. ... We also conduct regular outreach to police departments in many parts of the world to educate them about Facebook, and we make clear that fake accounts are prohibited.”

However, Facebook did not say whether it was planning to pursue the matter any further.

U.S. District Judge Jon Phipps McCalla of the Western District of Tennessee has ruled partially in favor of the ACLU in the Tennessee case, but has not made a final determination.