Should Police Be Arrested For Illegal Hacking For Setting Up Fake Facebook Profile?

from the we-should-be-fair,-right? dept

Mon, May 18th 2009 9:22am — Mike Masnick

In the Lori Drew case, she was convicted for "computer hacking" because she violated MySpace's terms of service by setting up a profile of a fake person. And for this, she deserves years in jail? Well, if that's the case, reader Roni Evron wants to know if some police officers are going to face the same charges after they set up a fake Facebook profile in order to bust up an after-prom high school party. Apparently, they set up a fake Facebook profile and friended a bunch of the kids at school, who apparently were "cavalier about accepting people into their network of friends." That, of course, is fine... but it's basically the same thing that Drew was arrested and convicted of doing.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: hacking, lori drew, terms of service

68 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Angel (profile), 18 May 2009 @ 9:27am

Isn't this entrapment?
I have to wonder if this isn't entrapment.
[ link to this | view in chronology ]
- Ryan Radia, 18 May 2009 @ 9:36am
  
  Re: Isn't this entrapment?
  Probably not. Unless the police induced the teenagers to do something they wouldn't have otherwise done, chances are an entrapment defense would fail. The police could, however, be sued by Facebook for deliberate misuse of Facebook's service and knowingly violating Facebook's terms of service. Assuming the police themselves have admitted to creating fake identities, unless they had Facebook's permission, Facebook might have a good case.
  [ link to this | view in chronology ]
- Mylo, 18 May 2009 @ 11:12am
  
  Re: Isn't this entrapment?
  Thanks to the internet here's their phone and other contact information. Let them know what you think.
  Fair Lawn P.D. (201)796-1400. Talk to Chief of Police Erik W Rose re: the unlawful actions of Police Sgt. Derek Bastinck.
  [ link to this | view in chronology ]
- Mylo, 18 May 2009 @ 11:12am
  
  Re: Isn't this entrapment?
  Thanks to the internet here's their phone and other contact information. Let them know what you think.
  Fair Lawn P.D. (201)796-1400. Talk to Chief of Police Erik W Rose re: the unlawful actions of Police Sgt. Derek Bastinck.
  [ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 9:39am

This idea that violating the TOS of a website can be considered hacking is ridiculous. How many people know/understand the TOS of every online account they have? I would bet that people are unwittingly violating these TOS all the time. Also, many TOS can change with no notice or announcement.
[ link to this | view in chronology ]
Ima Fish, 18 May 2009 @ 9:55am

"but it's basically the same thing that Drew was arrested and convicted of doing."

But, unlike the police, Drew was not thinking of the children. And, as you probably know, ever since the Helen Lovejoy Act was passed in 2008, thinking of the children is now the sole basis of all criminal laws in this country.
[ link to this | view in chronology ]
- The infamous Joe, 18 May 2009 @ 10:06am
  
  Re:
  I know you were just being sarcastic, but wasn't Drew thinking of *her* child when she made (or had made for her?) that MySpace page?
  
  So, is there a minimum number of children you have to be thinking about before "hacking" a social media site is okay?
  
  Typing that last sentence kinda made me feel dirty.
  [ link to this | view in chronology ]
  - Ima Fish, 18 May 2009 @ 10:21am
    
    Re: Re:
    "but wasn't Drew thinking of *her* child"
    
    The act specifically uses "the children." Apparently, under the law thinking only of your own children is not good enough.
    [ link to this | view in chronology ]
    - Anonymous Coward, 18 May 2009 @ 10:29am
      
      Re: Re: Re:
      That and its not her job to be thinking of "her" child. It's the government's job. DER!
      [ link to this | view in chronology ]
      - Mylo, 18 May 2009 @ 11:29am
        
        off subject
        what's going on with cognews?
        [ link to this | view in chronology ]
Ryan, 18 May 2009 @ 10:06am

Apparently, they set up a fake Facebook profile and friended a bunch of the kids at school, who apparently were "cavalier about accepting people into their network of friends." That, of course, is fine...

I find it repulsive that any educated person could shrug this behavior off as "fine". These dipshit cops had nothing better to do than to go far out of their way in setting up a sting operation for a frickin' high school prom party?? While Lori Drew's actions had more unfortunate consequences, I personally find the cops' actions to be considerably more despicable given their power and responsibility to the public, which they have abused horribly to no evident benefit but to be able to harm the lives of a bunch of young teenagers happy to be graduating from high school.

Thinking this sort of stuff is "fine" is the next step along the way to an official Gestapo-esque thought police...
[ link to this | view in chronology ]
- Norm, 18 May 2009 @ 11:03am
  
  Re:
  Ummmm....it's not like they were wire tapping or opening people's mail.
  [ link to this | view in chronology ]
- dan, 18 May 2009 @ 12:06pm
  
  Re: children drunk killed
  Wonder what you would say if children were killed because they were trashed.
  1). O.D. on booze, happens all the time.
  2). Fall over balcony's and die. Again, happens all the time.
  3). Killed in car accident. Car meats tree, tree wins.
  
  but, I bet you don't care how many kid's die. They shouldn't be given a chance to a longer life and not making the mistakes we made.
  
  fuck off and dye Ryan, because thats all you are wishing on the children by your bull shit fucking attitude.
  [ link to this | view in chronology ]
  - mklinker, 18 May 2009 @ 12:21pm
    
    Re: Re: children drunk killed
    Except he wasn't such a prick about it! And, I have to believe that kids today will survive their prom just as kids for the last couple generations have. This atitude of protecting the children from possible harm does not teach them how to react when in a similar situation later in life. By your arguement we'd have kids setting off to college before doing these crazy things, or is that too early - maybe we should protect them until the graduate. Well, that still leaves many years, maybe we should protect them until retirement.... let the damn kids live before saying we don't care about their life!
    [ link to this | view in chronology ]
  - Kilgore Trout, 18 May 2009 @ 1:36pm
    
    Re: Re: children drunk killed
    I think we've found one of the Fair Lawn HS seniors.
    [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2009 @ 9:52pm
    
    Re: Re: children drunk killed
    What color shall we 'dye' him? I'd go with mauve. Suck a pretty color.
    [ link to this | view in chronology ]
  - BTR1701, 19 May 2009 @ 6:24am
    
    Re: Re: children drunk killed
    > Wonder what you would say if children were
    > killed because they were trashed.
    
    I'd say that's too bad, but that's life. You make choices and sometimes they're bad ones and bad things happen.
    
    > Car meats tree, tree wins.
    
    It's "meets", not "meats".
    
    > bet you don't care how many kid's die
    
    It's "kids" not "kid's".
    
    > They shouldn't be given a chance to a longer
    > life and not making the mistakes we made.
    
    This sentence makes absolutely no linguistic sense. Is English your second language?
    
    > fuck off and dye Ryan
    
    It's "die", not "dye" - unless you're suggesting he go dip himself in some kind of colored stain.
    
    Seems like you could do with a little more high-schoolin' yourself.
    [ link to this | view in chronology ]
bob, 18 May 2009 @ 10:06am

In any trial
I would have to go with jury nullification on my part.
[ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 10:11am

Cops cannot be trusted, they feel free to break the same laws they enforce because of their 'authority'. Is this news?
[ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 10:15am

I certainly hope that the lawyers attack the cops with Lori Drew's case as a precedent.
[ link to this | view in chronology ]
Guy One, 18 May 2009 @ 10:21am

what ever happened to cops picking up a few rats to work for them?
[ link to this | view in chronology ]
Rob (profile), 18 May 2009 @ 10:24am

Well... it's a good thing that we live in a world with such little serious crime that the police can spend time and resources setting up an elaborate sting to keep some high school kids from (gasp!) drinking. I for one know that I will be sleeping a little more soundly tonight knowing that the police are willing to do whatever is necessary and use whatever resources are necessary in this time of economic prosperity to prevent such heinous crimes from happening in the future. After all, this really is for the children...
[ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 10:26am

So these kids were talking about a party they were having and now people are upset because the cops learned about the party through Myspace?

Here is a hint, if you are going to break the law, don't talk about your plans on Myspace.

Ryan, they didn't set up a sting, they just read about where the party was going to be, its not like they said they were throwing a party for underage people and arrested who showed up.
[ link to this | view in chronology ]
- Anonymous Coward, 18 May 2009 @ 10:38am
  
  Re:
  Way to miss the point asstard.
  [ link to this | view in chronology ]
- Anonymous Coward, 18 May 2009 @ 12:12pm
  
  Re:
  Sorry to inform you but under age drinkers do not get arrested. If they are over 18 the cops do nothing. If they are under 18 they take them in and have the parrents pick them up.
  
  The big thing is the owner of the house gets a fine per kid for contributing to a minor even if they did not know about it or supply the alcohol.
  
  I know this because some thing similar happened at a party just after graduation when I was 18.
  [ link to this | view in chronology ]
  - dan, 18 May 2009 @ 12:50pm
    
    Re: Re:
    really? So the parents did not have to come and pick up the children when the party was busted? They were allowed to drive home in what ever condition they were in. Sureeeee.
    
    Sorry, I don't agree. Those kids would have been taken off the streets that night. Thankfully, not in jail. But home where they would have a MUCH better chance at survival.
    [ link to this | view in chronology ]
    - dan, 18 May 2009 @ 12:54pm
      
      Re: Re: Re:
      and the 18 year olds... As soon as they stepped into the cars, they would have been popped for dui... Your telling me that that shouldn't happen either. Again, taking them off the street.
      
      Some times I really wonder where peoples logic is.
      [ link to this | view in chronology ]
    - Anonymous Coward, 18 May 2009 @ 9:55pm
      
      Re: Re: Re:
      Didn't read what he posted, did ya? Trolldan...
      [ link to this | view in chronology ]
  - Anonymous Coward, 1 Jul 2009 @ 12:08pm
    
    Re: Re:
    Total BS. Parents pick the kids up and then have to hire lawyers to represent the kids in court. ALlllllll the way up to legal age of drinking. You are fooling yourself if you think nothing happens to kids who are caught drinking.
    [ link to this | view in chronology ]
Mechwarrior, 18 May 2009 @ 10:36am

It's unreasonable to expect authority figures to follow the law.
[ link to this | view in chronology ]
Thwaaack, 18 May 2009 @ 10:36am

Absolutely, they should be arrested
Legal precedent, as it currently stands, says that they broke the law. They should do the same for the "Dateline" people and any other "concerned citizen" that poses as a minor to catch sexual predators. NOT because I think these people should not be doing what they are doing, but because Lori Drew was convicted on an emotional response to her actions, and not unbiased interpretation of the law. If we were to throw every person who violated a website's TOS into jail with the maximum penalty, as the prosecutors in the Drew case wish to do, this would quickly resolve this abortion of the law. Lori Drew didn't hack anything, she just lied about who she was, and used that persona to torment an emotionally and mentally fragile little girl. If the girl's parents were better parents, they would have seen what was going on and gotten her help, instead of letting others raise their children. There is absolutely no proof of causality in this case. For all we know, the kid could have committed suicide even if she never talked to the persona invented by Drew.
[ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 10:37am

'Apparently' is the most overused word. Please, do your part and refrain from using it.
[ link to this | view in chronology ]
- Anonymous Coward, 18 May 2009 @ 10:41am
  
  Re:
  please do your part and refrain from posting anywhere... ever.
  [ link to this | view in chronology ]
- Mikey, 19 May 2009 @ 1:16am
  
  Re: Apparently...
  [ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 10:37am

so... TOS are now law?
I don't get it.
[ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 10:50am

lol
funny
[ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 10:53am

Unless you agree with the Lori Drew case, the answer is obviously no.
[ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 10:57am

... but it's basically the same thing that Drew was arrested and convicted of doing.

My God...talk about talking out of both sides of one's mouth. One the one hand it is said that internet sites are a good way for law enforcement to monitor the potential for criminal activity. Now it seems that by doing so they should be deemed guilty of engaging in illegl activity.

Sorry, but to compare Ms. Drew's case with this activity is so far off the mark it astounds me.
[ link to this | view in chronology ]
- Mike (profile), 18 May 2009 @ 11:37am
  
  Re:
  My God...talk about talking out of both sides of one's mouth. One the one hand it is said that internet sites are a good way for law enforcement to monitor the potential for criminal activity. Now it seems that by doing so they should be deemed guilty of engaging in illegl activity.
  
  Heh. Way to miss the point. I don't think it's illegal. I'm pointing out that if you think what Drew did was illegal, then this should be illegal... Get it?
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2009 @ 12:56pm
    
    Re: Re:
    Get it?
    
    Of course, except for the fact that Ms. Drew was charged with using a false identity to gain access to a site in order to commit an intentional tort...the intentional infliction of severe emotional distress. Several felony counts were alleged in the indictment, but in the end the jury elected to convict her on lesser included misdemeanor counts, and was unable to achieve unanimity on at least one count of criminal conspiracy.
    
    Without a doubt Ms. Drew will be sued (if she already has not) by the parents of the young girl in a civil action including, inter alia, intentional infliction of emotional distress, wrongful death, etc. I would not hold my breath that she will be found not liable under the law.
    
    The civil case notwithstanding, a criminal indictment was certainly not unexpected, though the statute utilized was unusual in the sense that it was a matter of first impression before the court. Will the conviction stand up when it is most certainly appealled is a matter of debate within legal circles, but clearly there is no overwhelming consensus that her conviction will be overturned.
    
    It does bear mentioning that at this point in time the court has before it a motion for the conviction to be vacated. If it is vacated the government will likely appeal. If it is not the defendant will likely appeal. No matter what happens, this criminal case is far from over.
    [ link to this | view in chronology ]
    - BTR1701, 19 May 2009 @ 6:28am
      
      Re: Re: Re:
      > Ms. Drew was charged with using a false
      > identity to gain access to a site in order
      > to commit an intentional tort.
      
      That's not what she was charged with at all. She was charged with using a false identity in violation of the web site's Terms of Service. Nothing in her charging document even mentions intentional torts, nor are they an element of the crime. (Nor could they be because torts are civil wrongs, not criminal wrongs.)
      [ link to this | view in chronology ]
- Chronno S. Trigger, 18 May 2009 @ 11:41am
  
  Re:
  Swing and a miss.
  
  The Drew case was about a violation of the terms of service witch turned into a hacking charge. Drew created (or had created for her) a fake MySpace page and that is the only thing she was accused of (under the law).
  
  The cops created a fake MySpace page. They lied about who they were and what they were doing. It's the same damn thing (under the law) as the Drew case.
  
  I keep adding "under the law" because the law is suppose to be blind. Thus, Drew was sentenced exclusively for violating the terms of service, nothing else.
  [ link to this | view in chronology ]
- chris (profile), 18 May 2009 @ 2:02pm
  
  Re:
  My God...talk about talking out of both sides of one's mouth. One the one hand it is said that internet sites are a good way for law enforcement to monitor the potential for criminal activity. Now it seems that by doing so they should be deemed guilty of engaging in illegl activity.
  
  the point isn't that the cops broke the "law". the point is that now that thanks to the judicial travesty that was the lori drew case, the cops have now broken the law.
  
  cops setting up a sting to catch teenagers via facebook is super lame, but being lame shouldn't be illegal.
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2009 @ 7:51pm
    
    Re: Re:
    Even the lawyers for Ms. Drew admit this as a difficult question. Perhaps they should have asked you to prepare and submit your "judicial travesty" brief.
    [ link to this | view in chronology ]
Norm, 18 May 2009 @ 11:10am

Apples and Oranges
There is this thing called Prosecutorial Discretion, thank goodness. Put into context what Lori Drew did and what the Police did were very different.
[ link to this | view in chronology ]
Justin, 18 May 2009 @ 11:33am

Something to think about
I never thought of it this way, but now don't all the To catch a Predator people have a way out of their sentence. if the action to catch them is deemed illegal all the evidence used to convict them is now tainted and unusable, basically they have nothing. It is nice to see that people think of the whole picture before they make a dumbass emotional interpretation of the law rather then anything close to the correct one.
[ link to this | view in chronology ]
Challanging the evidence, 18 May 2009 @ 11:37am

As no prosecutor would ever go after these police officers using the same reasoning, we can argue how they should, but nothing will happen.

However, defense attorneys should be able to say that this method of gathering evidence is criminal, and I would assume that they can get any evidence obtain from a fake profile (in a case like this, or in a case similar to what was done on Dateline)to be declared as illegal.
[ link to this | view in chronology ]
Steve R. (profile), 18 May 2009 @ 11:41am

Moral Duplicity
Here's another one, what is the difference between strip searching a 13 year old girl on an allegation of misconduct and an ISP strip searching your packets on their own volition and without a warrant looking for contraband?

The New York Times screams moral outrage when it comes to strip searching a 13 year old girl based on a false accusation but then is silent concerning demands by the content industry that ISPs "filter" internet traffic without any due process or even probable cause. Seems to me that the concept of "justice" for the Times is a matter or perspective and not law.

Please see: Piracy and the Legal System
[ link to this | view in chronology ]
Overcast, 18 May 2009 @ 11:46am

No - only regular citizens should be prosecuted for breaking the law. Politicians, Police, Military have a pass as they are 'above the law'.
[ link to this | view in chronology ]
- The infamous Joe, 18 May 2009 @ 12:44pm
  
  Re:
  I was in the Military and I can tell you that we were not only under the civilian laws, but also the Uniform Code of Military Justice (UCMJ), so instead of being above the law, we were actually under about twice the laws as most people. (and being charged with a civilian law does not prevent you from being charged with the military equivalent!)
  
  Not only that, but it seemed to me that I got punished harder for the things I did because I "represent the country".
  
  Also, I am friends with a few cops and I'd say that they aren't any more or less corrupt than the rest of us.. with exceptions on either side, of course.
  
  Politicans-- yeah, they're all corrupt, as far as I can tell.
  
  Not that it has any bearing on the focus of your rant, I just wanted to set the record straight.
  [ link to this | view in chronology ]
Ron, 18 May 2009 @ 11:52am

police on facebook
It's common practice among the RCMP to create and impersonate accounts on Facebook. Apparently they are above the TOS and can do this...."legally". Quite frankly I think it's entrapment...I keep hearing of this practice through friends who have relatives in the service.
[ link to this | view in chronology ]
Bob V, 18 May 2009 @ 12:34pm

Undercover?
So what happens if a cop is undercover and creates an email/social network/ whatever account under that identity.

I know what you are saying and agree that it was a travesty to charge her with hacking offencess, but seriously isn't there isn't a better example somewhere other than cops doing their jobs.
[ link to this | view in chronology ]
- Jordan, 18 May 2009 @ 12:38pm
  
  Doing their jobs?
  Cops jobs are to keep peace and enforce the will of the people. Since when is digital fraud a part of the job description?
  [ link to this | view in chronology ]
Norm, 18 May 2009 @ 12:44pm

You are sheep
You folks run to where ever Mike points you. I'm pretty sure you'll all be calling for the cops to be waterboarded.
[ link to this | view in chronology ]
- Chronno S. Trigger, 18 May 2009 @ 1:32pm
  
  Re: You are sheep
  No, we're actually calling for the Drew case to be overturned. She is not a hacker, and that ruling is an insult to true hackers. Let her get sued into the ground with a wrongful death suit (and final judgment for those religious people). Don't twist the law into something that can, and will be, used against the cops so some damn pedophile can get out of a true conviction. Using a fake profile is fine, creating a precedence that a fake profile is against the law is not.
  
  You call us sheep, I call you a sheep for following the emotional flash mob that cropped up. Or maybe you're calling us sheep because we try to follow the original ideals that were setup at the beginning, like freedom from wrongful prosecution (and having blind justice, that kind of thing).
  [ link to this | view in chronology ]
dave, 18 May 2009 @ 12:58pm

above the law
the law is above the las
[ link to this | view in chronology ]
Stuart, 18 May 2009 @ 1:27pm

Ummm
Yes
[ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 1:28pm

It'll all be ok soon
When Ms. Drew gets out, she will secretely rejoin myspace and make the people behind the injustice kill themselves, and hopefully the parents for having the arrogance to not accept any responsibility for the well-being, let alone the life of their child.
[ link to this | view in chronology ]
Anonymous Poster, 18 May 2009 @ 3:47pm

Lawsuit and criminal charges for those officers now please.
[ link to this | view in chronology ]
AEP528, 18 May 2009 @ 4:19pm

If you read this article http://www.wpix.com/news/local/wpix-facebook-prom-party-arrests,0,4578855.story you will note that the police were acting on a tip.

Is it just me, or has the already low reading comprehension abilities of TechMud commenters hit rock bottom? It was Facebook people, not MySpace.
[ link to this | view in chronology ]
- Anonymous Coward, 18 May 2009 @ 8:43pm
  
  Re: Do As I Say - Not As I Do
  Sounds like a really good tip there, the only problem was the tipster forgot to include an address so the cops had to violate the law in order to stop an alleged crime from taking place.
  [ link to this | view in chronology ]
Lets be real, 18 May 2009 @ 4:23pm

Internet Stings
When Law Enforcement took their cues from perverted justice they simply forgot a few things, for example the LAW. Lots of states have unlawful computer hacking statutes. There is no provision that it is okay for LE but not okay for joe public. The websites do not have a special provision for LE officers. Why is LE spending their time in sexually charged adult rooms that require people to be over 18? Pretending to be a lost teenager in a room that people are role playing in. Hmmm because of the nature of the internet and the anonymity someone would be more likely to talk to someone that merely says they are a certain age. This is not like walking into a mall. The other thing that is common in these chat rooms is cybersex where people type stuff about sex. It is time that the country be educated on internet stings. Notice they never tell you it was in an ADULT ROOM 18 YEARS OR OLDER......
[ link to this | view in chronology ]
Someone who cares, 18 May 2009 @ 4:36pm

Arrest Law Enforcement ICAC!!!!!!!!!!!!!!!!!!!!!
YES YES AND YES
[ link to this | view in chronology ]
Anonymous Coward, 18 May 2009 @ 6:42pm

Get Off My Lawn !
[ link to this | view in chronology ]
Dan, 18 May 2009 @ 9:02pm

Would setting up a bogus teen party to "honeypot" the police be illegal? What about video tapping the whole fiasco for Youtube?
[ link to this | view in chronology ]
Random, 13 May 2010 @ 10:52am

VERY IMPORTANT
hi, i just need to know one very important thing!

can someone please tell me if police are allowed to hack facebook-profiles to check face-chat if they suspect someone?

ty
[ link to this | view in chronology ]
Marshall (profile), 22 Apr 2012 @ 8:18pm

The Police, Probation Officers and maybe more have fake facebooks around where I live and should not be able too cuz it's invasion of privacy, unless you're doing something illegal and they should be stopped. I hope they get arrested and put in jail.
[ link to this | view in chronology ]
Bryan West (profile), 22 Apr 2012 @ 10:51pm

Alcona County, Michigan
[ link to this | view in chronology ]