Say I'm creating an alternate reality game where I want players to be contacted by an FBI agent through email. Ideally, in order for players to remain immersed, the email would appear to be actual communication from a real FBI agent. Since players have to provide an email address beforehand, and they do so in the context of the ARG, they should be aware that these emails are not actual FBI communication, but there's a real risk that players either sign up other people who are unaware or that players sign up and forget about it before receiving anything.

My question is two-fold: is it legal to impersonate a government agent if most reasonable parties don't actually believe me to be a government agent? And if not, what precautions should I take to ensure no one thinks the emails are legit, hopefully without hurting immersion?

(I'm based in the United States, but the game could be played by any English speaker, so I tagged the question with - let me know if I should change that)

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    Does it have to be specifically FBI ? Using a realistic-but-fictional agency instead could be a workaround. – Peteris Sep 25 '19 at 13:18
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    That certainly could work - the sense of authority is what matters, not necessarily the letters behind it. I wonder if making up a division of the FBI would work similarly, or if the major issue is about using the FBI letterhead/seal/name/whatever. – crass_sandwich Sep 25 '19 at 13:39

18 USC §912 provides that:

Whoever 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, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

I do not think that in the context of a movie, play or game the person portraying an FBI agent or other LEO is "acting as such", and surely this does not involved obtaining "any money, paper, document, or thing of value".

The Wikipedia article on Police_impersonation says:

Dressing up as a police officer in costume (e.g. for Halloween), or pretending to be a police officer for the entertainment purposes or a harmless prank toward an acquaintance is generally not considered a crime, provided that those involved recognize the imposter is not a real police officer, and the imposter is not trying to deceive those involved into thinking they are. Nevertheless, replica police uniforms sold in the UK must not be identical to the uniforms currently used by the police, and traders have been jailed in the past for selling on genuine uniforms.

Many films and TV shows have portrayed FBI agents, in some cases actual agents by their real names. This goes back as far as the 1935 moviw G-Men starring James Cagney. Many examples are listed in the Wikipedia article Federal Bureau of Investigation portrayal in media, and many of them used realistic badges and depictions. They were not treated as criminal impersonations, even when the FBI or its officials strongly disapproved of particular movies.

The somewhat similar US federal law 10 USC 772 prohibits wearing military uniform by persons who are not authorized, but paragraph (f) provides that it is permitted:

While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.

A Vietnam-War-era court case held the restriction "if the portrayal does not tend to discredit that armed force" to be an unconstitutional restriction of speech, and held that unauthorized wearing of a uniform was only punishable if there was charged a proved an "intent to deceive". I would expect a similar limitation of 18 USC §912.

That said, if the email was such that a reasonable person might well be deceived into believing that it really came for an actual FBI agent or other government employee, there might be a problem. The suggestions on that point in the answer by user hszmv seem reasonable to me. An imaginary "Confederal Department of Interrogation" say, keeps things firmly in an alternate reality.

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  • The word "Confederal" should probably be avoided as there were two periods of American history that that the term suggests. The first and less well known was the period following the Revolutionary War, when the United States was under the "Articles of Confederation" and the central government was much weaker, with the second period was the government of the southern states in the Civil War, the Confederate States of America. In both cases, neither would have an executive government agency that lasted to today (The first had no real executive branch and the latter made the term unpopular).+ – hszmv Sep 30 '19 at 12:41
  • @hszmv Yes but the adjective "Confederal" was not used for agencies of the 1860-65 "Confederate" government. (That used "Confederate" as its adjectival form.) It has, however, been used for the imaginary governments in several SF works, and the very funny fantasy The Case of the Toxic Spell Dump by Turtledove. Anyway, my point was simply that by changing the adjective, it becomes an obvious parody or fiction. – David Siegel Sep 30 '19 at 13:08
  • +It's also worth pointing out that in the final days of the CSA, there were only a few U.S. law enforcement agencies in the United States government: THe agency now known as the U.S. Coast Guard (then two distinct services, with the Revenue Cutter Service being the origins of the law enfrocement) the United States Customs, the U.S. Postal Inspection Service (under a much clunkier name), the U.S. Park Police, and the U.S. Marshal's service. + – hszmv Sep 30 '19 at 18:42
  • The thing is confederacy also went through a shift in meaning. The "Swiss Confederacy" is a formal name of the nation of Switzerland, but it's really a Federal state, like the U.S., which is what the word meant back when it was first adopted. The modern sense of the word is a confederacy is a federal state where the sub-states can leave through a process and the distinction was one of the main issues of the civil war (the Union position that "you can't leave because your issue lost" being the victor.). – hszmv Sep 30 '19 at 18:49
  • Additionally, the OP is operating as a fictional agent of the U.S. Government, so a fantasy nation where "Confederate" is an appropriate title for an agency would not be answering the question. If the agency is itself fictional, it would operate under the United States government that is the same level organization save for the additional agency, on an org chart. – hszmv Sep 30 '19 at 18:52

I would go to the FBI.gov website and see what server they are using publicly (it should be [account]@fbi.gov, but I'm not 100% certain.). Then make sure your email is not remotely close. Government e-mail accounts tend to follow a schema for how they are created using the users name, so you will also want to avoid that schema so if someone sends to your address @FBI.Gov, it will automatically bounce as the account name is wrongly formatted and thus not in the server.

I would also recommend you call FBI Public Relations and ask for their opinion of best practices for making a fictitious e-mail account for an equally fictitious agent. Don't be surprised if they say it's a crime and won't help you, but their a fairly popular agency to portray in fiction (I'm sure the 90s were full of applicants trying to get into the fictional X-Files department). You wouldn't be the first person to ask how to do it without causing a panic.

In universe, you should mention that the contents of the e-mail are highly classified and that under no circumstances should the contents be discussed with anyone but the contacting agent through the e-mail he has sent you. This not only discourages talking to the real FBI, but is also an immersive way to do that. Proper format for classified material should be avoided, so it's legally distinct that it's not something from the Government (all Federal agencies follow the same guidelines on how to properly mark the classification of the e-mail). It can further contribute to the don't talk to anyone line if you mention that the document is "compartmentalized" and only given on a "need to know basis". This is something that not only sounds cool, but is really done. Just because some has a Top Secret clearance, it doesn't mean they can access information... classified materials are frequently compartmentalized which means that you need to be read into a program to see the information and that determination is on a "need to know" basis. The FBI agent may have a Top Secret clearance, but he doesn't need to know about the workings of the latest Air-force stealth-jet to do his job... so he's not allowed to see that information. Similarly, the Air-force engineer doesn't need to know who is being investigated for spying on the U.S., so he can't see that stuff... but he can see stealth-jet designs because he's working on the project.

Again, ask the PR contact in the FBI what is the correct way to create an immersive document that will clearly look fake to agents... but looks real to the public.

Edit: And don't be afraid of asking the PR person in detail. "It's for a book" or similar phrases actually work wonders in just about any organization, not just government.

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    You do know that email addresses are not case sensitive? – Dale M Sep 25 '19 at 23:34
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    @DaleM: I fail to see what case sensitivity has to do with anything? If you are asking because I use capital letters in the email server address, then I fail to see the problem as no case sensitivity means I can write it that way. If you are discussing the formate, it's not applicable as the format has nothing to do with capitliazation, but what a government issued email will be expected to look like (usually, it is a character truncation of an employee's legal name that fits into a limited character space). – hszmv Sep 26 '19 at 18:05
  • If the account format is always 7 characters long, then any incoming email to an account with 8 characters will bounce off the server. Someone might share the same name as the fictional agent, but they will never have an 8 character email with the agency. I'm not sure of the format of the FBI's address as I've never emailed that agency, so I can't be certain formats I do know are valid advice. – hszmv Sep 26 '19 at 18:07
  • Right, be careful to make up a classification type or level, like "HushHush Super" or "FYEO Ultraviolet Upper Mid NatSec". Don't use existing ones, even if you end up acquitted you might have an overall bad time sitting in jail waiting for trial. – Robert Columbia Sep 28 '19 at 19:20
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    @RobertColumbia: The U.S. Classification system has three official classifications (and a fourth quasi-official for Unclassified info (so titled) that isn't a real rank, but doesn't mean it's releasable for public knowledge). In order of least importance to most, they are: Confidential, Secret, and Top Secret. There is a style guide on properly marking a document with classified material, and my advise is to look into the style, but do a different format so it's clearly mismarked. Sending an email out to outsiders will only be Unclassified, so it should be good to do that and have redactions – hszmv Sep 30 '19 at 12:29

If a reasonable person would understand the nature of the interaction, you are protected by the First Amendment.

The Sixth Circuit had a decision looking at simiilar factual circumstances just a few weeks back in Novak v. City of Parma. In that case, a man created a Facebook page that purported to belong to the Parma Police Department. Obviously, the police were butthurt and arrested him. Even though the page was obviously intended to mock the police, the police said it was criminal because some people were confused.

The Sixth Circuit told the police to GTFO:

The officers claim that his Facebook page was false and meant to mislead the public, not a parody. But they are wrong to think that we just look to a few confused people to determine if the page is protected parody.

Our nation's long-held First Amendment protection for parody does not rise and fall with whether a few people are confused. Instead, we must apply a "reasonable reader" test. Id. Speech that "could not reasonably have been interpreted as stating actual facts" is a parody, even if "patently offensive." Id. The test is not whether one person, or even ten people, or even one hundred people were confused by Novak's page. ...

Instead, the test for parody is whether a reasonable reader would have seen Novak's Facebook page and concluded that the posts stated "actual facts."

Given that your readers have signed up for these types of interactions, it would not be reasonable to believe the e-mails contain "actual facts.

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    But could the OP be liable if someone signs up an unwitting third party? – Nuclear Wang Sep 26 '19 at 15:29
  • Not under any set of facts I can imagine plausibly arising out of the OP's description. – bdb484 Sep 26 '19 at 19:14
  • this is regarding a parody account. a parody made it clear that there was no impersonation. the question is whether the OP's author has the onus of making it clear. – grovkin Sep 28 '19 at 10:37
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    Waiting for our donuts #ParmaPolice – Robert Columbia Sep 28 '19 at 19:17

To be on the safe, all emails should have a reminder that this is a game, and not a real communication from the FBI, before the content which is game-related.

This interaction is guides not only by 18 USC §912, but also by the DOJ guidance on what constitutes elements of personation under 18 USC §912 on how it is to be applied. It cites the case in which "by inquiring about passports, defendants pretended to be federal immigration officers."

The burden of making it clear that this is not an impersonation is on you. So the reminder that this is just a game cannot be somewhere in a "small print" (or in a link or on the last page of a long email).

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Impersonating an FBI agent, even for TV (or in this case a game) is a federal crime.

As an example, the TV show "Supernatural" involves two brothers that hunt monsters. They frequently pretend to be FBI agents, but their badges don't say "Federal Bureau of Investigation". Instead they say "The Federal Bureau of Justice, United States Department of Investigation".

Text of the law:

Whoever 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, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

Source: https://www.law.cornell.edu/uscode/text/18/912

As you can see "in such pretended character demands or obtains any money". I'm sure it's unlikely that prosecution would happen for something like a game or TV show, but it's still illegal. As I mentioned previously, the producers of the TV show "Supernatural" obviously didn't want to take any risks and I'm sure their legal team wouldn't allow it.

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    Why do you think a fictional depiction in a TV show or movie against any law? – George White Sep 25 '19 at 19:23
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    Can you site any source that says: "Impersonating an FBI agent, even for TV (or in this case a game) is a federal crime"? – David Siegel Sep 25 '19 at 21:46
  • @DavidSiegel updated my answer to include a source. – Jeremy Sep 26 '19 at 14:14
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    the "pretend character" who is an actor does not actually demand any money from anyone. The other actors do not think any money is actually being demanded. "Pretending" in this context means, pretending to the other party. In the case of acting they are not pretending to be anything other than fellow actors to the others. – George White Sep 26 '19 at 17:43
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    You are completing misunderstanding what the word pretending means in the context of the law. It means the pretender is deceiving someone. An actor in a show is not deceiving his or her fellow actors at all, let alone for the purpose of getting something from them. – George White Sep 26 '19 at 21:01

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