On the Texas District and County Attorneys' public user forum, a string yesterday showed how DAs are using information from MySpace web pages not just for sex offenders, but for increasingly low-level crimes - in this case two juveniles who set fire to some clothes in the middle of a WalMart store in Plainview. In that case, Jim Tirey, a prosecutor from Plainview, wants to charge the pair with third degree felony arson, but finds the statutes only allow him to charge with a Class B misdemeanor for "criminal mischief" (which I should say, seems to me to more accurately apply to what the kids did). Both kids already confessed, he said, but it will "tick me off" if he cannot secure a felony conviction.
Leaving aside what punishment would fit this particular crime (Tirey muses he might load up the indictment with several higher, less likely charges then "drop some things off along the way"), I was especially interested to see a prosecutor from Williamson County
Geez, that's devious, but fair game, I suppose, if they're public sites. The next bit of advice, though, I thought went over the line.
Tirey went and checked, then replied, "One of these kids apparently does not have a MySpace page. The other has several, including one that was last updated a few days ago, but they are all private. I do not think that I can very well invite her (or whatever you do on MySpace) to be my friend and let me see her page. I am reasonably sure she might recognize my name and refuse. Is there some way I can get to look at the page without using outright deception?"
Good question. What constitutes outright deception? Lets see what his fellow prosecutors think. Another prosecutor identified only as Gretchen replied: "Could you have an investigator invite your D as a friend? I would think that'd be no different than chatting up a child molester online, and you'd only have your investigator monitoring the site, not even necessarily engaging in conversation. Just a thought."
That IS quite a thought. I wonder how many investigators and cops are "monitoring" private MySpace accounts, having used this ruse to pretend to be a "friend" when they really are seeking evidence to prosecute?
Here's an example of that famous slippery slope: Tactics become commonly used to pursue a terrible crime, like child molestation, that may violate constitutioonal rights, but because the crime is so heinous it's tolerated by public opinion. In the legal world, though, what that does is set precedent for using those same tools in other, less serious crimes - in this case a Class B misdemeanor. No warrant, no judicial oversight. Nothing. And how long may this "monitoring" go on? Quien sabe? Who knows?
Tirey asks if it'd be okay if a probation officer made the surreptitious ask to be the defendant's friend, but Gretchen thought "it would be better if it was law enforcement, such as your arresting officer."
That last bit of advice tells me prosecutors understand that this would constitute an investigative function. In that case, there's a process for them to access private information of defendants: If they have a need to see this girl's MySpace account, prosecutors should go to the judge and ask for a search warrant. And if they don't have probable cause to get a warrant, they shouldn't send cops surreptitiously lurking onto young girls' private MySpace pages, or anybody else's.
UPDATE: Prosecutors defend MySpace deception.