"Impersonating" a government agent for an Alternate Reality Game

Question

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 international - let me know if I should change that)

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

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).

Answer 5

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.