Facebook to DEA: Stop Impersonating People, Creating Fake Accounts

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By Mark Wilson, Esq. on October 21, 2014 12:24 PM

Wait, what? You mean somewhere in between Aunt Sally and George Takei, the Drug Enforcement Agency was on Facebook? Apparently so. Earlier this month, Buzzfeed reported about Sondra Prince, a real person, whose Facebook page was not her own.

Prince (real name: Sondra Arquiett) was arrested on the ground that she was part of a drug ring. She was sentenced to probation. Unbeknownst to her, DEA agent Timothy Sinnigen set up a Facebook profile using her name and photos in the hope that criminals would try to communicate with her.

Dislike!

Facebook wasn't happy. (And just ask the Winklevii what happens when Mark Zuckerberg gets unhappy.) On Friday, Joe Sullivan, Facebook's Chief Security Officer, sent the DEA a letter expressing its "deep concern" and asking that "the DEA cease all activities on Facebook that involve the impersonation of others."

Sullivan pointed out in the letter that law enforcement agencies aren't somehow exempt from Facebook's policies, which categorically prohibit "[c]laiming to be another person, creating a false pretense for an organization, or creating multiple accounts."

Not Unconstitutonal -- but Not Cool, Either

As a Fourth Amendment question, the DEA's actions would seem to fall under the "false friend" exception, in which anyone who reveals information to a third party runs the risk that the third party will hand that information over to the police; or, indeed, that the person is a police informant already. Such actions don't require warrants or any kind of suspicion because, once the information is shared with someone else, there's no reasonable expectation of privacy. So if any criminals were actually caught using the DEA's impersonation, there'd be no ground to suppress the evidence derived therefrom.

Even so, the DEA's actions might subject the agency to civil action, which is exactly how Buzzfeed found out about what happened: Arquiett is suing the DEA. In its response to the lawsuit, the DEA actually admitted that it had no express permission to create a Facebook account in Arquiett's name, but contended that she implicitly consented by granting access to the information stored in her cell phone and by consenting to the use of that information to aid in an ongoing criminal investigations [sic]."

The Daily Signal also points out the double standard: Private citizens who impersonate other private citizens on Facebook get charged with felonies. When the government does it? Nothing. Perhaps the DEA might have a leg to stand on if it could produce a court order or anything else, but it didn't have any of that -- not even Arquiett's knowledge.

So the next time some sexy lady whom you've never met wants to friend you on Facebook, just imagine that Kojak is at the keyboard.

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