The Justice Department is claiming, in a little-noticed court filing, that a federal agent had the right to impersonate a young woman online by creating a Facebook page in her name without her knowledge. Government lawyers also are defending the agent’s right to scour the woman's seized cell phone and to post photographs — including racy pictures of her and even one of her young son and niece — to the phony social media account, which the agent was using to communicate with suspected criminals.
The woman, Sondra Arquiett, who then went by the name Sondra Prince, first learned her identity had been commandeered in 2010 when a friend asked about the pictures she was posting on her Facebook page. There she was, for anyone with an account to see — posing on the hood of a BMW, legs spread, or, in another, wearing only skimpy attire. She was surprised; she hadn’t even set up a Facebook page.
The account was actually set up by U.S. Drug Enforcement Administration Special Agent Timothy Sinnigen.
Not long before, law enforcement officers had arrested Arquiett, alleging she was part of a drug ring. A judge, weighing evidence that the single mom was a bit player who accepted responsibility, ultimately sentenced Arquiett to probation. But while she was awaiting trial, Sinnigen created the fake Facebook page using Arquiett’s real name, posted photos from her seized cell phone, and communicated with at least one wanted fugitive — all without her knowledge.On Monday, the Justice Department’s headquarters in Washington, D.C., referred all questions to the DEA, which then declined to answer questions and, in turn, referred inquiries to the local U.S. attorney’s office in Albany, New York. That office did not respond to multiple requests for an interview.
But on Tuesday, less than 24 hours after BuzzFeed News published the story, the Justice Department's top spokesperson, Brian Fallon said, "The incident at issue in this case is under review by Justice Department officials."
A Facebook spokesman declined to comment on the case. The site’s “Community Standards” say, “Claiming to be another person, creating a false presence for an organization, or creating multiple accounts undermines community and violates Facebook's terms.” The spokesman said there is no exception to this policy for law enforcement.
On Monday, the bogus Facebook page was accessible to the public. But after this story was published, Facebook took down the page, telling BuzzFeed News, "We removed the profile because it violates our community standards."
Leading privacy experts told BuzzFeed News they found the case disturbing. “It reeks of misrepresentation, fraud, and invasion of privacy,” said Anita L. Allen, a professor at University of Pennsylvania Law School.
The experts also agreed that the case raises novel legal and ethical questions. There is a long tradition of deceptive practices by police that are legal, they noted. For example, officers assume a false identity to go undercover. “What’s different here,” said Ryan Calo, a professor at the University of Washington School of Law, is that the agent assumed the identity of a real person without her explicit consent.
“The technologies we have now are enabling all sorts of new uses,” said Neil Richards, a professor at the Washington University School of Law. “There are a whole bunch of new things that are possible, and we don’t have rules for them yet.”
The DEA’s actions might never have come to light if Arquiett, now 28, hadn’t sued Sinnigen, accusing him in federal district court in Syracuse, New York, of violating her privacy and placing her in danger.
In a court filing, a U.S. attorney acknowledges that, unbeknownst to Arquiett, Sinnigen created the fake Facebook account, posed as her, posted photos, sent a friend request to a fugitive, accepted other friend requests, and used the account “for a legitimate law enforcement purpose.”
The government’s response lays out an argument justifying Sinnigen’s actions: “Defendants admit that Plaintiff did not give express permission for the use of photographs contained on her phone on an undercover Facebook page, but state the Plaintiff 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].”
That argument is problematic, according to privacy experts. “I may allow someone to come into my home and search,” said Allen, of the University of Pennsylvania, “but that doesn’t mean they can take the photos from my coffee table and post them online.”
“I cannot imagine she thought that this would be a use that she consented to,” the University of Washington’s Calo said.
"That's a dangerous expansion of the idea of consent, particularly given the amount of information on people's cell phones," said Elizabeth Joh, a professor at the University of California, Davis, School of Law.
The government’s court filing confirms that Sinnigen posted a photo of Arquiett “wearing either a two-piece bathing suit or a bra and underwear,” but denies “the characterization of the photograph as suggestive.”
This picture is no longer on the Facebook page, but others are. An album called “Sosa,” her nickname, shows her in a strapless shirt and large hoop earrings or, in another, lying face-down on the hood of the BMW, legs kicked up behind her. “At least I still have this car!” reads a comment supposedly posted by her.
The DOJ also acknowledges that Sinnigen posted photos of Arquiett’s son and niece, who were then clearly young children.
Arquiett’s current attorneys declined requests to interview her. But court documents tell much of her story.
She was arrested in July 2010 and accused of participating in a conspiracy to distribute cocaine, an offense that could carry up to a life sentence. She pled guilty in February 2011, and, in a court filing, federal prosecutors recommended a reduced sentence, noting that she was not a significant player in the conspiracy and had promptly accepted responsibility.
Arquiett grew up in Watertown, New York, according to a motion on sentencing by her attorney in her criminal case. Her father was imprisoned when she was an infant. Her mother was an alcoholic and drug user, and her stepfather abused both Arquiett and her mother.
By 2008, Arquiett was dating Jermaine Branford, who authorities believed to be the head of a drug trafficking ring, the criminal complaint against Arquiett says. He also physically abused her, according to the sentencing motion her lawyer filed.
The government accused Arquiett of allowing Branford and his associates to process and store cocaine in her apartment and helping them contact other members of the drug ring and arrange transactions. Branford later pled guilty in federal court to conspiracy to distribute cocaine and received a sentence of almost 16 years.
Arquiett’s lawyer argued that Branford and his crew took advantage of her vulnerabilities. “To her, because they ‘took care’ of her, she considered them like family,” attorney Kimberly Zimmer wrote. “In fact, they preyed upon and used her.”
Arquiett, Zimmer wrote, wasn’t paid like other members of the drug ring, just given money on occasion to buy gas or other items. “At the time, although she knew that her co-defendants were distributing drugs and that she was helping them to do so, she considered the things that she did for Branford and the other co-defendants as ‘favors,’ ” Zimmer wrote.
Zimmer also noted Sinnigen’s actions. “Ms. Arquiett never intended for any of the pictures on her phone to be displayed publicly, let alone on Facebook, which has more than 800 million active users,” she wrote in the motion addressing sentencing. “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 for legitimate law enforcement purposes, that is, to have contact with individuals involved in narcotics distribution.”
Taking all of this into account, a judge sentenced Arquiett to five years of probation, including six months of weekend incarceration and six months of home detention. This March, a probation officer certified that she had complied with the terms of her sentence and terminated her probation.