Can the DEA Impersonate You on Facebook?

By: John Boyd

The Drug Enforcement Agency (“DEA”) is facing a federal lawsuit brought by a woman claiming the DEA, specifically Agent Sinnigen, impersonated her on Facebook.[1] Sondra Arquiett, claims that, after she was arrested in connection with a drug ring, the DEA searched her phone, seized pictures, and used those pictures to set up a Facebook profile using her real name.[2] She further alleges that the DEA used the profile to contact wanted fugitives and suspected drug dealers.[3] Moreover, she claims that members of her family, including her son and niece, were included in the pictures posted.[4]

The DEA admits several points including that it impersonated Arquiett, contacted a wanted fugitive, and accepted friend requests from others.[5] However, the DEA claims, generally, that Arquiett does not have a legal cause of action, among other things, because she cannot prove that the action was with the “absence of a legitimate governmental interest.”[6]

For better or worse, we, as a society, are becoming accustomed to the new surveillance climate. Some find the federal Utah Data Center, which is alleged to process and store “all forms of communication, including the complete contents of private emails, cell phone calls, and Internet searches, as well as all types of personal data trails,” as just another symbol of diminishing privacy rights.[7] Yet, there is a difference between the nearly unfettered power the executive branch claims to have, of knowing every time you send a Snapchat, and sending Snaps in your name. Here, the DEA claims that because there was a legitimate government interest, it did not violate any privacy rights.[8]

However, it seems that the New York legislature has been updating their “Facebook status.” In March 2007, the New York legislature unanimously approved a memorandum in support of a bill amending the identity theft statute to incorporate Internet impersonation.[9] Thus, not only is it morally wrong to impersonate someone, there is criminal liability as well.

The statute reads:

A person is guilty of criminal impersonation in the second degree when he…[i]mpersonates another by communication by internet website or electronic means with intent to obtain a benefit, injure, or defraud another.[10]

Before the ink dried, this statute was put to use.[11] Raphael Golb was convicted of criminal impersonation under this statute when he impersonated several of his father’s rivals through email.[12] His father is a professor who is a scholar of the Dead Sea Scrolls.[13] Raphael attempted to support his father’s view of the scrolls by sending a number of emails, in the name of other professors, either claiming to admit plagiarizing his father’s work, or promoting his father’s view on the Scrolls.[14] The Court of Appeals upheld most of his convictions, most notably, several stemming from the criminal impersonation statute, showing that this statute has some weight to it.[15]

It is doubtful that a criminal case will be brought against Agent Sinnigen, but it will be interesting to see how this case, and the law, evolves.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] James Bamford, The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say), Wired (Mar. 15, 2012), http://www.wired.com/2012/03/ff_nsadatacenter/all/1.

[8] Hamby, supra note 1.

[9] S. 4053, 2007-2008 Reg. Sess. (N.Y. 2008).

[10] N.Y. Penal §190.25(4) (McKinney 2008).

[11] John Leland, Online Battle Over Sacred Scrolls, Real-World Consequences, The New York Times (Feb. 16, 2013), http://www.nytimes.com/2013/02/17/nyregion/online-battle-over-ancient-scrolls-spawns-real-world-consequences.

[12] Id.

[13] Id.

[14] Id.

[15] People v. Golb, 15 N.E.3d 805 (N.Y. 2014).