Online Impersonation: I Have a Right to Be Left Alone v. You Can’t Mandate How I Use My Privacy Toolbox

Abstract

In the virtual world, one person can present himself in different identities and several persons can present themselves under the same virtual identity. Online impersonation can occur in two ways: either by stealing one’s personal information to gain access to his online profile or by creating a completely fake profile.The fake profile might reveal information that belongs to someone else or be totally fictitious. Such flexibility in assuming one’s identity online is due to the anonymity that people enjoy in the online world. Inability to elaborate proper identification tools of Internet users is one of the biggest challenges in preventing and prosecuting social media related crimes.

However, creating a fake online profile is not a criminal act per se. The component that turns the lawful act into an unlawful act of online impersonation is the imposter’s malicious intent to “defraud,” obtain a “benefit,” or “injure”. Prosecuting illegal acts of online impersonation by law enforcement may interfere with an individual’s right to communicate freely. In this respect, courts have tried to set the boundaries of such actions as to not undermine the substance of the free speech right. Moreover, proactive conduct by police officers in creating fake profiles of minors that target potential online sexual predators or other criminals might sometimes interfere with a person’s right to privacy. Under such circumstances, reference to the facts of a specific case helps in determining whether the defendant had a reasonable expectation of privacy in the information he shared over the course of an online communication.

Keywords: data privacy, cybersecurity, fourth amendment, first amendment, social media