Whether Corporate Spying or Just a Spoof, Imitation Is a Dangerous Game
The exchanges ended once Mr. Cobb determined the emails were not from Mr. Scavino and responded, “Felony to impersonate a federal official.”
The statute prohibiting impersonating a federal official, 18 U. S.C.
§ 912, makes it a crime for any person who “falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such.” (At one time, the law required proving an intent to defraud through the impersonation, but
that requirement was dropped when Congress revised the federal criminal code in 1948.)
In United States v. Rosser, the United States Court of Appeals for the District of Columbia Circuit held
that a violation must involve “something more than merely an act in keeping with the falsely assumed character.” That analysis would most likely preclude prosecuting the prankster, because he did nothing more than use Mr. Scavino’s name to engage with Mr. Cobb and never sought any confidential information or other action from him.
The court found that a charge is sufficient “if it contains general allegations of impersonating and acting as a federal officer.” Further, it said, “an indictment need not allege additional acts beyond the general act of impersonation.”
That analysis would at least allow the Justice Department to pursue an investigation because of the assertion that the emailer was Mr. Scavino, even if nothing further happened.
and the United States attorney’s office in Manhattan over a program it internally called “Hell” — not a good way to make an impression, either —
that essentially allowed its software to impersonate a passenger who had used its rival service Lyft.
The key question is whether emails discussing interactions with the news media and did not request any specific action beyond a meeting with Mr. Cobb can be enough to prove
that the prankster pretending to be Mr. Scavino had met the “and acts as such” requirement.
