Many would argue that cops cross the line when they impersonate people on social networks to catch suspects, but that doesn’t mean that fake accounts are always off the table. In a recent opinion, New Jersey district judge William Martini contends that police don’t need search warrants to create bogus Instagram accounts for the sake of seeing a suspect’s photos. As Martini explains, it’s “consensual sharing” — the perpetrator is both making these pictures public and willingly providing access to others. That’s bad news for Daniel Gatson, an alleged burglar who insisted that law enforcement needed probable cause (that is, reasonable belief that there’s evidence of a crime) to peek at an Instagram feed laden with shots of cash and jewelery.
The fake is still bound to raise eyebrows, but it’s on safer ground than previous attempts at creating undercover social accounts. Impersonation isn’t an issue here, so the police aren’t misrepresenting someone else. And unlike Facebook, Instagram doesn’t requirethat you use your real identity — an imaginary persona is fine according to the terms of service. This opinion doesn’t guarantee that other courts will rule the same way, but it could influence their decisions the next time officers use internet services to gather evidence.