Facebook Does Not Want the DEA to be Your Friend

In early October, Sondra Arquiett filed a lawsuit alleging that the Drug Enforcement Agency (“DEA”) created a fake Facebook account using her name and information. Arquiett was awaiting sentencing for possession of cocaine, for which she would eventually receive probation. According to the lawsuit, the DEA created the account for the purpose of identifying other suspected individuals in a drug conspiracy. The falsified Facebook account included pictures of Arquiett with her son and niece, as well as Arquiett in provocative poses. The pictures were retrieved from Arquiett’s smartphone, which was in the possession of the DEA during the drug investigation. Arquiett’s attorney noted that she did not intend to post any of the pictures and the it was “More disturbing than the fact that the DEA Agents posted a picture of her in her underwear and bra is the fact that the DEA agents posted a picture of her young son and young niece in connection with that Facebook account, which the DEA agents later claim was used . . . to have contact with individuals involved in narcotics distribution.”

U.S. Attorney Richard Hartunian admitted that a DEA agent created the fake Facebook account, but defended the actions stating that although Arquiett did not expressly grant the DEA permission to use the account and photos, she “implicitly consented by granting access to the information stored in her cellphone and by consenting to the use of that information to aid in . . . ongoing criminal investigations.”

The DEA has launched a review of the practice noting “that review is ongoing, but to our knowledge, this is not a widespread practice among our federal law enforcement agencies.”

Facebook responded to the practice last week in a letter to the DEA demanding that agents not impersonate users on the social network. Facebook’s chief security officer stated, “The DEA’s deceptive actions. . . threaten the integrity of our community. Using Facebook to impersonate others abuses that trust and makes people feel less safe and secure when using our service.” Additionally, Facebook pointed out that the DEA’s use of a fake account violated the social network’s terms and Community Standards. Facebook has demanded that the DEA cease any additionally impersonations on the network.

Privacy experts have commented that the DEA’s actions appear to be very similar to identity theft, noting “It’s one thing to strike a deal and become an informant. It’s another to lose complete control of your online identity.” Professor Anita Allen of University of Pennsylvania Law School said, “It reeks of misrepresentation, fraud, and invasion of privacy.” Additionally, experts agree that it was a stretch for the DEA to assume that Arquiett, or any informant would allow the use of any photos discovered during the search and that it was unlikely that someone would consent to the DEA’s use. Professor Elizabeth Joh of University of California Davis, School of Law commented,

That’s a dangerous expansion of the idea of consent, particularly given the amount of information on people’s cell phones.

Arquiett’s DEA created Facebook account was removed by Facebook administrators and her suit is proceeding in the federal courts for the Northern District of New York.