A significant topic has developed over the last few months over the legality of whether law enforcement can create fake social network accounts to impersonate people for the purpose of trapping criminals. A new contribution to that discussion has been made after a US district judge said that police officers don’t need to get search warrants in order to create a fake Instagram account and view the photos a suspect shares on the service. This decision will already have a direct effect on a case involving a suspect posting photos of stolen cash and jewelry.
In an opinion published last week, District Judge William Martini of New Jersey wrote that when people post photos to the network, it’s “consensual sharing.” Users post photos for public viewing, and/or allow others direct access when they choose to “friend” or “follow” them. Thus, no search warrant is required for this type of information.
Judge Martini’s decision was made in denying the request of defendant Daniel Gatson to have Instagram photos thrown out as evidence. On trial for a number of burglaries involving over $3 million in jewelry, Gatson argued that police did not have probable cause to view or seize data from his Instagram account. Unsurprisingly, his photos were of the stolen property.
This kind of situation is very different from the one in which DEA agents created a Facebook account that was based on and used the photos of a real person. Instagram doesn’t require users to use their real identity, so using a made-up identity isn’t the same as impersonation. This seems much more within the limits of the law and harder to argue against in court, but Judge Martini’s decision doesn’t guarantee that other courts with similar cases will rule the same, however it sets a strong example for next time police collect evidence online via social networks.