Sophos Cloud Optix
The US government is claiming that an agent had the right to set up a Facebook account and to impersonate a young woman using information it swiped from her seized mobile phone after she was arrested.
The woman, Sondra Arquiett (spelled in some court documents as Arquiette), was surprised when a friend asked her about photos she was posting on her Facebook page.
One showed her with her legs open, posed on the hood of a BMW; another was of her clad only in underwear; another one showed her face-down on the BMW, legs nonchalantly crossed in the air above her butt, captioned with this comment:
At least I still have this car!
That’s strange, she thought at the time, given that she’d never even set up a Facebook page.
That’s when Arquiett first found out that her identity had been hijacked by a US Drug Enforcement Administration special agent by the name of Timothy Sinnigen.
Arquiett, who learned about the bogus account in 2010 when she was going by the name of Sondra Prince, sued.
Now, as BuzzFeed reports, the Department of Justice (DOJ) is claiming that Sinnigen had the right to impersonate the woman by taking out a Facebook page in her name (and against Facebook’s terms of service), to ransack the woman’s seized mobile phone, and to post photographs found thereon – including not only photos of Arquiett, but also a photo of her young son and niece.
The agent didn’t stop there.
Sinnigen not only accepted friend requests on her behalf. He also reached out to a known fugitive, sending him a friend request, disguised as coming from the bogus Prince account.
Sinnigen’s lawyer said in the court filing that Prince had “implicitly consented” to all this by handing over access to her mobile phone and all its data – friends’ information, photos and all – thereby consenting to “aid in … ongoing criminal investigations.”
Arquiett gave up her First Amendment Right to privacy when she gave up her phone, the Feds are claiming:
Plaintiff does not have a First Amendment Right to Privacy in the photographs contained on her cell phone.
Plaintiff relinquished any expectation of privacy she may have had to the photographs contained on her cell phone.
Plaintiff consented to the search of her cell phone.
The “Sondra Prince” page was still visible on Facebook at the time that BuzzFeed wrote up the story on Monday, but the page has since been removed by Facebook who said “We removed the profile because it violates our community standards.”
Arquiett’s attorney claimed in the lawsuit that the counterfeit page, along with her intimate photos, was up for at least three months.
This caused her “fear and great emotional distress,” according to the court papers, particularly given that the ruse made it look like she was a narc:
...by posing as her on Facebook, Sinnegen had created the appearance that Plaintiff was willfully cooperating in his investigation of the narcotics trafficking ring, thereby placing her in danger.
BuzzFeed spoke with a number of privacy experts, all of whom called the government’s argument a dangerous precedent – particularly when you’re talking about the treasure trove of data we keep on our phones.
Anita L. Allen, a professor at University of Pennsylvania Law School, likened it to the search of a home that, in spite of being done with consent of the homeowner, has gone way beyond the norm:
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.
According to the DOJ, Sondra Arquiett had consented to a search of her phone.
But it’s hard to imagine that the notion of consent would extend so far as to allow an identity to be usurped – particularly when such a counterfeit could put the subject in danger of violent retribution from criminals who think she’s working with the Feds to bust them all.
I agree with Elizabeth Joh, a professor at the University of California, Davis, School of Law, who called this “a dangerous expansion of the idea of consent.”
What’s particularly nasty is the idea that this DEA agent didn’t tell Ms Arquiett that she was being used in this manner. She was taken completely unaware by the ruse.
On so many levels, both humanitarian and in terms of privacy protection and limiting this extremely stretched definition of “consent”, I hope the government’s argument that it’s OK to hijack somebody’s identity gets decisively and quickly slapped down.
Image of Facebook courtesy of Shutterstock.
“I hope the government’s argument that it’s OK to hijack somebody’s identity gets decisively and quickly slapped down.”
It won’t. This is just another progression in the trend of illegal seizure and rights-whittling done in the name of catching the “bad guys” at any cost, including the unprovoked and militaristic forfeiture of basic rights and privileges.
There is also the intentional violation of an ISP’s terms of service, which the DOJ has argued in the past is a crime.
The outcome here is that the DOJ considers permission to access as equal to permission to distribute or make use of for benefit.
That might put a bit of a hole in that international copyright thing.
Is there an option to specify the terms of the agreement that you are entering into when the armed man takes your phone and tells you to unlock it ?
Please keep us updated on this one.
This incident may also have a negative consequence for law enforcement across the US and beyond — since they are arguing that voluntary handing over of private information for a search now gives them the right to assume and abuse a person’s identity, this sends a pretty clear message: don’t hand anything over to law enforcement without a court order, and at that point stipulate that the information handed over can only be used as indicated by the order.
As such, this argument by one agency is likely to have chilling effects globally for law enforcement gathering information. Is this really what they want to happen?
Law Enforcement (LE) has yet to show they can be trusted to ensure the right things happen to someone arrested. Sure they read you rights, but if you refuse to let them search your car, they hold you until they can get a warrant or get a dog for searching whatever they think is in there that’s illegal. This isn’t a right, they are just tramping on you, so there is no reason to let them, make them do it all, then maybe you have some way to fight them. It’s typical when they see something they may be able to use, they jump on it and figure out good points to tell the judge of why they were able to do it. Believe me if the circumstances were reversed they would be a wine you could hear on the moon, of how they were tied up and couldn’t do anything. True or not.
LE needs to just get a judge to sign a warrant every time someones items need to be searched or inspected. THE WARRANT needs to specify what they are looking for and anything not listed is not admissible. This would prevent many fishing expeditions.
i was stopped once, the cops said for me 2 give him my phone, i said no, the woman cop, started coming towards me, and said”GIVE HIM UR PHONE” they’ll more or less TAKE IT.
Quotation: “A government big enough to give you everything you want, is a government big enough to take away everything that you have.”
This is the moral equivalent of a virtual social media “gang rape,” even though we’ve been told to consider it “torture” to strip a terrorist naked in a private interrogation or make him wear underwear on his head. Unfortunately this agent’s actions and the DOJ’s defense of such is consistent with the overriding culture of lawlessness within a majority of the federal agencies. Remember in November to vote for candidates that will hold the Executive Branch’s feet to the fire and aggressively punish those responsible for such perverted activities.
The problem with rampant, entrenched corruption (even corruption of an idea like justice), is that you can’t vote people out of it, even if we could get our collective wills together to do so. You’d have to get rid of the vast majority of the executive, congressional, and judiciary branches, their staffers, their handlers, and most of the staff of the entire justice system from the head of the FBI to the local cops. I’m sure there are criminals even scarier than these jerks that would love that.
No, this is one of those issues where we need constant public pressure, outrage, and oversight to tell the entire system was is and is not appropriate here. We the public must watch the guards. This balance is as old as society, and there is no better solution.