Computer Crime | Admission of Evidence
Law enforcement officials, including tax auditors and probation officers, are monitoring social networks like Twitter and Foursquare for information about criminals and deadbeats. AP , "For federal fugitive, Facebook becomes invitation to extradition," Dallas Morning News, Mar 17, 2010.
A California tax agent, for example, tracked down a delinquent taxpayer who works as a sail rigger by reading about his whereabouts on an online discussion board used by sailing folks. Laura Saunders, "Is 'Friending' in Your Future? Better Pay Your Taxes First," Wall Street Journal, Aug 27, 2009.
Some speculate/allege that some law enforcement officers misidentify themselves in web forums. Query whether an officer who impersonates someone online or in text chat is acting illegally or committing a crime. The terms of service of many social media sites forbid deception or misrepresentation of the user's identity.
Key case: A jury convicted cyberbully mom Lori Drew of a misdemeanor crime for impersonating a teenage boy on Myspace, in violation of Myspace's terms of service. Drew’s misbehavior contributed to a girl’s suicide. The jury believed Drew violated the federal Computer Fraud and Abuse Act (CFAA), which generally forbids accessing an Internet computer without authority (or exceeding authority in the computer) and taking data or causing damage. However, the judge in the case overturned Drew’s conviction on the grounds that the CFAA is too vague, and provides too little guidance to prosecutors, to support a misdemeanor crime based on violation of web service terms. So Drew got off without punishment. US v. Lori Drew
Lori Drew was just a misguided mother, not a professional. Would an agent of government (such as a police detective) or a private investigator (such as a computer forensics expert) be held to a higher standard than Drew? That is not clear. Under the reasoning of the Lori Drew case, misrepresentation by a law officer, in violation of web terms of service, might be a sufficiently clear abuse of authority in a computer (i.e., the web server) to constitute a crime.
Would a lawyer, who is acting as an investigator in, for instance, a divorce case, be violating law if he misrepresents himself on a social network? Sharon D. Nelson, Esq., argues the answer is yes. She says the lawyer would be violating his ethical prohibition against deception. (Update: The New York City Bar Association's ethics committee agrees with Ms. Nelson in its Formal Opinion 2010-2.)
A related issue is whether evidence gathered in violation of terms of service is inadmissible in court. See the Connecticut rules of evidence, as one example. Sec. 52-184a states: "No evidence obtained illegally by the use of any electronic device is admissible in any court of this state." In an investigation in a social network, the illegally used "electronic device" might be the computer of the investigator, or it might be the server the investigator accessed without authority because she entered under false pretenses.
Although the CFAA may be too vague to support a misdemeanor conviction of a masquerading mother, it may be adequate to prevent admission (in some jurisdictions like Connecticut) of evidence collected by a tricky professional investigator.
Any investigator is wise to study terms and contracts covering their access to computers and Web 2.0 social media.