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Undercover police operations run the gamut from Miami Vice-style raids to phone tapping á la The Wire, but last week Facebook told law enforcement agencies that the social media site will not be an option for officers looking to carry out covert operations.The company reprimanded the Drug Enforcement Administration for creating a fake profile using a real person's information and personal photos to assist in an "undercover" sting investigation, saying that they found the activity "deeply troubling."
Facebook's chief security officer, Joe Sullivan, sent a letter to the agency on October 17 informing them that "the DEA's deceptive actions violate the terms and policies that govern the use of the Facebook service and undermine the trust in the Facebook community."Sullivan asked the DEA to "cease all activities on Facebook that involve the impersonation of others."The letter was prompted by a lawsuit filed by Sondra Arquiett, who sued the DEA after her arrest on drug charges in 2010 led to her personal information and photographs — taken from a seized cell phone — being used to create a fake Facebook profile.The Facebook account was used to contact and connect with friends of Arquiett who were believed to be involved in drug activity. DEA agent Timothy Sinnigen, who created the account, posted pictures of Arqulett in her underwear and with her young son and niece.Arquiett, who did not have a Facebook account of her own, says the profile put her in danger and violated her privacy. She is seeking $250,000 in damages.While the DEA has now promised to review its policies concerning social media within investigations, the agency initially defended the action by claiming that Arquiett "implicitly consented" to the creation of the fake profile by "granting access to the information stored in her cell phone and by consenting to the use of that information to aid in ongoing criminal investigations."
Susan Freiwald, an expert in cyberlaw and information privacy at the University of San Francisco School of Law, said that companies like Facebook can keep the government accountable in instances like this."Big companies like Facebook have significant influence on government policies, both because of their economic power and because, practically, they hold a lot of information that law enforcement wants to access," Freiwald told VICE News.Facebook said the DEA violated the site's rules prohibiting "claiming to be another person, creating a false presence for an organization," providing "false personal information," and creating an account "for anyone other than yourself without permission."The company reminded the DEA that law enforcement is not exempt from the site's terms and conditions. While fake accounts are frowned upon by the social network, which tries to disable as many of them as possible, the accounts are not illegal and evidence collected from them will likely still hold up in court."Law enforcement agencies tend to seek as much information they can get under the lowest procedural hurdle," Freiwald explained. "They argue that the Fourth Amendment does not protect information stored with a third-party provider, which effectively leaves the internet constitutionally unprotected."Arquiett's fake Facebook profile was discovered by Chris Hamby of BuzzFeed, who obtained court documents with details of the ongoing lawsuit, then personally visited the profile account, which has since been taken down by Facebook.
Facebook revealed in February that between 5.5 percent and 11.2 percent of the site's profiles were fake as of last year. Using the upper estimate, that means there were as many as 137.76 million bogus accounts on the network in 2013.The DEA Is using Facebook to bust drug dealers — and is now getting sued for it. Read more.Justice Department spokesman Brian Fallon said the creation and use of misleading or fake profiles is "not a widespread practice among our federal law enforcement agencies," and that a review of the practice is underway.A recent survey, however, found that four out of five law enforcement officials used social media to gather intelligence during investigations, claiming it helped them solve crimes faster. The survey conducted by LexisNexis Risk Solutions polled 1,221 federal, state, and local law enforcement agencies and concluded that such tactics are becoming much more widespread among police across the country. Facebook, followed by YouTube, is the most fruitful social network for law enforcement, according to the survey.Police are also scraping social media websites to cross-reference data with official records. Police in Cincinnati dismantled a street gang and arrested 71 people in 2008 following a nine-month social media investigation that used this method. Authorities can also request private data directly from social networks with subpoenas or warrants, and make emergency requests if they think there's a possibility of imminent danger.
Arquiett's case isn't the first time the social media site has disagreed with government officials over access to user information.The company is currently contesting the Manhattan District Attorney's right to obtain Facebook information for 381 people. A judge ordered the company to hand over the information to prosecutors pressing charges against more than 130 government workers, including police officers and firefighters accused of fraudulently collecting disability benefits.Prosecutors planned to use the accounts to prove that employees were engaged in activities such as teaching karate and deep-sea fishing, but Facebook has said that, since only 62 of the 381 account holders were charged, many innocent people had their privacy violated."This means that no charges will be brought against more than 300 people whose data was sought by the government without prior notice to the people affected," Facebook said.Facebook is one of many companies — Yahoo, Microsoft, Twitter and Google included — frustrated by the government's secrecy and lack of accountability when it comes to using social media data.Last year the companies released their first government transparency report, revealing the number of data requests from world governments, including the US.In the first six months of 2013, Facebook received 9,000 requests for user data from the US government. Gag orders prevent the company from divulging details about the content of the requests. Several companies have filed lawsuits against the Foreign Intelligence Surveillance Court seeking to gain greater freedom to disclose the nature of government requests.
Legislation surrounding privacy and the internet is still in its infancy, but it might be many more years before the legal framework for such investigations is developed, partly due to lack of citizen pressure, Freiwald suggested."A sorely needed bill to make minor reforms to the federal electronic surveillance laws has stalled in Congress despite significant support from members," Freiwald said. "It would bring the same warrant requirement to stored electronic communications that applies to offline communications. Perhaps representatives need to hear more pressure from constituents before they act."For plain business sense or idealistic reasons, Facebook seems to be standing up to the government over the privacy of its user data."I think it's my job and our job to protect everyone who uses Facebook and all the information they share with us," Facebook founder Mark Zuckerberg, said at last year's TechCrunch Disrupt conference in San Francisco. "It's the government's job to protect all of us."Follow Olivia Crellin on Twitter: @OliviaCrellin