A recent case involving the United States Drug Enforcement Administration ended in a settlement this past Tuesday. As discussed in a previous blog post, the federal government has been repeatedly criticized for using controversial impersonation methods in connection with criminal investigations. In this case, a woman whose identity was allegedly used by a DEA agent on Facebook filed suit claiming that the federal government had violated her civil liberties.

In 2013 a woman from upstate New York realized a DEA agent, Timothy Sinnigen, had created a false Facebook account using her name and photographs. Shortly thereafter, Sondra Arquiett sued claiming that the government had violated her right of privacy under the First Amendment, right to equal protection under the Fifth Amendment, and right to be free from cruel and unusual punishment under the Eighth Amendment. She also brought a claim under the Federal Torts Claim Act alleging intentional infliction of emotional distress. The parties ended the dispute this past week, settling the case for $134,000 with the government neither admitting fault nor pledging to refrain from using similar tactics in the future.

Back in 2010 Arquiett pled guilty to possession with intent to distribute cocaine. During her arrest Arquiett’s phone was seized. In an effort to cooperate with the investigation she consented to officers looking through her phone. However, DEA agent Sinnigen proceeded to take content from her phone and create a publicly available Facebook page in her name. When creating the fake Facebook profile, Sinnigen uploaded personal photographs he had taken from Arquiett’s phone. Sinnigen uploaded pictures of Arquiett posing with her young son and niece, and a picture where Arquiett is only wearing what looks like underwear or a two-piece bathing suit. The Facebook page was created to allow DEA agents to contact individuals who were under investigation in connection with the same drug distribution scheme as Arquiett. The profile’s purpose was to “lure” criminal associates into revealing information and engaging in incriminating conversations.

Arquiett’s complaint alleged that she had suffered from emotional distress because the DEA’s tactics created the impression that she was willfully cooperating with the investigation, thereby placing her in danger. The government defended the operation in their response brief by stating that although Arquiett did not explicitly consent to the creation of the Facebook profile she “implicitly consented by granting access to the information stored in her cell phone.” The government further justified the operation claiming the profile was only used for “legitimate law enforcement purposes.”

The incident has sparked a discussion over privacy concerns, raised important issues about police tactics, and demonstrated the significance of online identities. Law enforcement agencies have a longstanding tradition of using undercover tactics in connection with criminal investigations and creating false identities. But how does this apply to the online context? To many this case demonstrates the crucial distinction between agents creating a fake identity and agents coopting another’s identity.

Additionally, this lawsuit has raised a debate about the concept of “consent” and our expectation of online privacy. Nate Cardozo, a lawyer from the digital rights group Electronic Frontier, expressed concern about how this behavior went beyond Arquiett’s level of consent. Cordozo highlighted that when an individual cooperates with law enforcement by allowing them to search a phone for evidence of a particular crime, the individual likely does not anticipate or consent to law enforcement taking that information and using it in a completely different context. Arquiett never agreed to become an undercover informant or grant permission for her identity to be used to gain incriminating evidence against third parties.

However, others have argued that Arquiett’s privacy claim is weak because she admitted to being involved in the cocaine distribution scheme and willfully agreed to cooperate in the investigation. According to Lawrence Friedman, a constitutional law professor, it seems harder to find a violation because her phone was not seized without consent. Rather, she was cooperating in a criminal investigation and when you take a plea with the government you “have to play by the government’s rules.”

Facebook has since taken down the phony profile stating that claiming to be someone you are not undermines community and violates Facebook’s terms. Facebook has also asked that “the DEA immediately confirm that it has ceased all activities on Facebook that involve the impersonation of others.” Although this particular conflict has been resolved, the incident will likely continue to encourage debates regarding government investigative tactics and online identities.

 

Sarah Robbins

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