Pretexting on Face Book

The Overstock saga continues.  As reported by Tracy Coenen and Gary Weiss, Mr. Bagley attempted, with some success, to infiltrate Facebook to "befriend" various people who have been critical of Patrick Byrne and his company Overstock.

Mr. Bagley's goal was to show the people who were critical of Mr. Byrne were also connected to each other by their Facebook site.

Mr. Bagley is described as an investigative reporter by Mr. Bryne.

Unfortunately, Mr. Bagley created a false identity on Facebook, using this image.

As Mr. Weiss tells it, he believes that Mr. Bagely has committed identity theft, under the Gramm-Leach-Bliley Act.

"The identity theft element comes from the fact that Bagley used a photograph of a person who did not give his consent, as I described in my last item.

Keep in mind that this was not some hobby photo; it was the work of a professional.

Yet it was obscure, not some famous photo in the public domain.

The identity theft victim and the photographer, whose picture was used for nefarious purposes without his consent, in violation of the Lanham Act, [sic] have been notified. It will be up to them whether they want to press charges."

I am not sure this act of deception by Bagley is a violationg of the Gramm Leach Bliley Act, no matter how stupid it is otherwise.

Recall that pretexting is aimed at getting parts of sensitive consumer information, usually from different institutions with the goal of getting enough private information to engage in identity theft and credit card fraud.

From the FTC website, it is illegal, prextexting, to:

• use false, fictitious or fraudulent statements or documents to get customer information from a financial institution or directly from a customer of a financial institution.
  
• use forged, counterfeit, lost, or stolen documents to get customer information from a financial institution or directly from a customer of a financial institution.
  
• ask another person to get someone else's customer information using false, fictitious or fraudulent statements or using false, fictitious or fraudulent documents or forged, counterfeit, lost, or stolen documents.

There doesn't seem any question that Mr. Bagley impersonated someone else, but I don't see this as an attempt to get customer information from Mr. Weiss.

It is a pointlessly stupid thing to do, given that the photo was so easily identified, but I don't see it as illegal pretexting.