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The Daily Signal
Federal Agency
Settles With Woman After Impersonating Her on Facebook, But Won’t
Promise Not to Do it Again
Jordan Richardson
January 29, 2015
The Drug Enforcement Agency created a fake Facebook profile of a woman
and used the account to message drug dealers—all without her knowledge
or consent.
Now, after facing a media firestorm and a lawsuit, the federal
government will settle with the woman for $134,000.
It all began in 2010 when the DEA arrested Sondra Arquiett for the
possession of cocaine with the intent to distribute it. To obtain a
reduced sentence, she pled guilty and cooperated with the government by
allowing them to search her phone for evidence.
The DEA, however, did far more than simply look through Arquiett’s
phone for her contacts. DEA decided to impersonate Arquiett on social
media to lure other members of the drug ring into contacting her.
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DEA Special Agent Timothy Sinnigen used pictures of Arquiett stored on
her cellphone to create a fake Facebook profile. The profile included a
photograph of Arquiett holding her two young children, and a suggestive
photo of her lying on the hood of a car with the caption, “At least I
still have this car!”
After being told by a friend about the suspicious account with her name
on it, Arquiett sued the DEA. According to her complaint, she “suffered
fear and great emotional distress because, by posing as her on
Facebook, Sinnigen had created the appearance that she was willfully
cooperating in his investigation of the narcotics trafficking ring,”
which placed her life in danger.
In response to the complaint, the Department of Justice argued that, by
pleading guilty and agreeing to cooperate, Arquiett had given implied
consent for the officers to access and use information stored on her
phone to aid ongoing criminal investigations.
But that defense is laughable. Allowing the government to search your
cellphone is not tantamount to allowing the government to create a
false public image of who you are or to agreeing to take
life-threatening risks on the government’s behalf.
The government’s claim certainly was not enough for Facebook, Inc.,
which noted that creating phony profiles violates its terms of service
agreement, or for the media, which rightly criticized the decision to
impersonate someone without her consent.
After months of negotiation, the government decided to settle.
“This settlement demonstrates that the government is mindful of its
obligation to ensure the rights of third parties are not infringed upon
in the course of its efforts to bring those who commit federal crimes
to justice,” Richard Hartunian, the U.S. Attorney for the Northern
District of New York, said in a statement.
But perhaps what is most telling from the settlement agreement is that
government did not admit any wrongdoing. Instead, it stands by its
untenable argument that Arquiett impliedly consented to use the
evidence found in her phone to assist law enforcement activities in any
imaginable—and unimaginable—way. Moreover, the settlement does not
specifically prohibit the DEA from using similar undercover tactics in
the future.
That is unfortunate. Law enforcement officers frequently use social
media to aid in their criminal investigations by posing as members of a
drug ring in order to make contact with other crew members. But that is
not what happened here.
“I may allow someone to come into my home and search but that doesn’t
mean they can take the photos from my coffee table and post them
online,” observed University of Pennsylvania law professor Anita Allen.
If someone consents to a search, then it should be expected that the
government will view private information which they would not have had
access to without your permission. What they find can be shared among
law enforcement agencies, introduced as evidence during trial, and
shown to opposing counsel and witnesses.
But consent to a search does not allow the government to use what they
find to create a false identity of your likeness, post it on Internet
social media, and make contact with drug dealers in an attempt to make
an arrest.
The U.S. Supreme Court has squarely held that the police may not invite
the media along on the execution of a search warrant so that the events
can be broadcast on network TV. Doing so, the Court held would violate
the privacy rights of the owner or occupant of the space being searched.
There is no material difference between what the DEA did in this case
and what the Supreme Court expressly held that law enforcement officers
cannot do. Both would violate the privacy rights of the person
subjected to the search, in this case Arquiett’s rights.
DEA Special Agent Sinnigen should have known that.
Read this and other articles at The Daily Signal
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