Deception by Spouse or Employer
A responsible investigator should think carefully before misrepresenting his identity on a social network in order to gather information. In, for example, a divorce or insurance case, a private investigator might be tempted to falsely identify himself as a friend or acquaintance in order to trick the target of investigation to “friend” the investigator and unwittingly reveal the secrets available only to the target's circle of approved friends.
Historically courts have been suspicious of private investigators who use deception to persuade targets to lower their guard. Courts have construed the deception as a violation of privacy.
Just as an investigator should normally shun misrepresentation, the principal (such as a spouse in a divorce case) who hires the investigator should monitor the investigator's work to prevent misrepresentation, lest the principal also be held liable for the privacy violation.
See Hawkes v. Commercial Union Insurance Company, (Maine Supreme Judicial Court, January 16, 2001), which held an insurance company could be liable for invasion of privacy by an independent private investigator working for the company. The plaintiff, Hawkes (the person suing the company), had submitted a worker's compensation claim for on-the-job injury, which the company was investigating. The company was suspicious whether Hawkes possessed a legitimate claim for a work-related injury. So it engaged a private investigator to surveil Hawkes and gather evidence. The investigator used false pretenses to gain entrance into the Hawkes home. The court held that the investigator and the company had invaded Hawke's privacy. The court required the company to pay for the invasion.
In the physical world an undercover police officer can generally claim to be someone he is not. Do the same rules apply for an undercover officer in cyberspace? Generally speaking, a police agency sending undercover officers online is wise to subject the online activity to written procedures, judicial supervision and management supervision.
Update: Some surmise that FBI is scanning social networking sites like Facebook for combinations of words that suggest criminal activity. One report suggests this monitoring led to the arrest of a man in the UK who was threatening to shoot people at a school.
Mr. Wright teaches investigation law at the SANS Institute.