Yes, there are undercover cops on Instagram

By Kashmir Hill | December 18, 2014 | 11:11pm

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Facebook is not the only social network where undercover cops are hanging out and trying to make friends. Undercover officers might also be among those asking to follow you on Instagram if they suspect your private account harbors artfully photo-filtered evidence of misdeeds.

Daniel Gatson spent a decade in prison for a string of burglaries in New Jersey in the ’90s; among those whose houses he looted was Patrick Ewing, making off with the former NBA player’s jewelry, fur coats, electronics, Lincoln Navigator and Mercedes Benz. When Gatson got out of prison in 2012, he allegedly got right back into the burglary game. Law enforcement spent nearly a year investigating him, collecting his email, monitoring his phone, and even bugging a minivan he rented. Law enforcement got court orders for most of this information collection, but not for peeping at his Instagram account. According to court filings, Gatson had wisely made his Instagram account private so casual visitors wouldn’t see him posting photos of himself with considerable bling. But he unwisely said “yes” when an undercover law enforcement officer posing as a normal Instagram user asked to follow his account.

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According to court filings, “as part of its nearly year-long investigation into Gatson and other coconspirators, law enforcement officers used an undercover account to become Instagram ‘friends’ with Gatson.” (The filings don’t say whether Gatson followed the undercover account back, or whether the undercover account ‘hearted’ any of Gatson’s photos.) According to an FBI agent on the case, Gatson “used the Instagram account to display photographs of himself with large amounts of cash and jewelry, which were quite possibly the proceeds” from his burglaries. Gatson tried to challenge prosecutors using the incriminating selfies against him in court, saying the undercover Instagram bestie violated his 4th Amendment rights against unreasonable search and seizure by friending him without probable cause. The judge in the case was unswayed, denying his request to suppress the evidence collected by the undercover Instagram account, ruling that police don’t need a warrant for “the consensual sharing of this type of information.”

Undercover officers have been haunting social networks for years, but they’ve started to get more creative in how they go about getting people to accept friend requests. Earlier this year, Buzzfeed reported that a DEA agent used photos downloaded from an arrested woman’s phone to create a fake Facebook account in her name in order to communicate with a wanted fugitive. Facebook complained to the DEA that the practice violated its terms of service and asked the drug-combatting agency not to impersonate people on its site in the future. The Justice Department said it would review the practice.

It’s not clear from the court filings in the Gatson case whether the undercover agent who friended Gatson posed as someone he knew or just as a random attractive lady Instagrammer. “There’s nothing on the record about the nature of the undercover account,” said a spokesperson for the Newark Attorney’s Office which is prosecuting the case. He said the fact might come out at trial, which doesn’t yet have a date set.

The whole premise of undercover police officers — who are increasingly being deployed federally — is to use deception and dishonesty to get intel. But when they do it within the contours of a company’s social network, they are often explicitly violating a site’s rules. “It may violate a website’s terms of service,” says Hanni Fakhoury, a lawyer with the Electronic Frontier Foundation, “but whether that rises to a violation of the law or ethical rules is unclear.”

Unlike Facebook, Instagram doesn’t have an explicit “real name” policy, but its terms of service do say users are supposed to provide “true, accurate, current and complete” information about themselves.

Even some law enforcement officers are troubled by the idea of going undercover on social media. A 2014 Lexis Nexis survey of nearly 500 law enforcement officers found that 9% of them thought it was unethical to create fake profiles on social networks to get dirt on suspects.

Of course, even if law enforcement officers don’t fake-friend you on a social network, they can always get what’s in your account by getting a warrant and asking a company to hand the digital goods over. So a good rule of thumb for criminals is to generally avoid posting #StuffIStole ‘grams.