After creating a false Facebook profile for a New York women in order to lure in drug dealers, the DEA has settled to the tune of $134,000 in damages. But unless there’s bigger changes coming, this sort of double standard will turn to full boil.

The Case

In 2010, Sondra Arquiett was asked by a friend about the pictures she was posting to her Facebook page. The problem was that she didn’t have a Facebook account. It turns out the account (using her then-last name “Prince”) was set up by DEA Special Agent Timothy Sinnigen. The photos, which included Arquiett posing in “skimpy” clothes and another photo where she held her nephew and son, were seized from her phone following her arrest.

Credit: thinkinclusive
Credit: thinkinclusive

Throughout the lawsuit, the DEA claimed that though she didn’t give her consent to have her identity used this way, that she implicitly consented by granting access to the information on her phone. They even went as far as to defend the use as “legitimate law enforcement purposes.”

After Arquiett filed a lawsuit, Buzzfeed picked up the story–with reporter Chris Hamby noting that, though this is a new frontier, to some degree this is more of the norm:

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.”

Facebook, however, does. The site’s community standards page makes it clear in no uncertain terms that claiming to be another person is a violation of the Facebook terms and undermines the community, and it would not be tolerated. Subsequently, Facebook took down the page as soon as it was notified and sent a letter to the DEA calling their actions “a knowing and serious breach of Facebook’s terms and policies.”

This is Now Standard

Unfortunately, it’s probably not enough. This sort of catfishing is a very common practice among law enforcement officers, despite Facebook’s opposition. The NYPD has released guidelines for registering aliases on social networks with the department,  and the Department of Justice released a social media guide for law enforcement officers which explicitly details the practice of officers creating fake accounts (again, flying in the face of Facebook’s protocols). But even that is a feat, as a LexisNexis report from 2014 says that only 48 percent of officers had guidelines in place about how to use social media in investigations. But a whopping 83 percent of responding officials stated that “creating personas or profiles on social media outlets for use in law enforcement activities is ethical,” which just goes to show us how accepted this practice is.

In that same LexisNexis study 86 percent of responding officers said they used social media to help investigate crimes more than 2-3 times a month, and 25 percent use it daily. The NYPD has even created a dedicated a social media unit to follow all the possible crime that’s out there. In short, law enforcement’s presence on social media is the new norm–and with 78 percent of the responding officials in the LexisNexis survey saying they think they’ll use social media more in the coming year, it’s not going anywhere.

What’s the Law?

There is, however, legislation that would echo what Facebook is saying–if it does indeed apply. Recently a number of laws around the country have made online impersonation a crime. Washington, California, New York, and Texas all have rules against it–in the latter it can even earn you a third-degree felony and up to ten years in prison. One New Jersey woman even faced up to 18 months in jail for impersonating her ex-boyfriend (who was a cop) on Facebook.

But, seemingly, these statues don’t work in favor of the average person, only the average law enforcer. It’s a disturbing pattern of behavior that can be seen being used both by the government (in the case of Arquiett) and for the government (in the case of Thornton). Nadia Kayyali and Dave Maass of the Electronic Frontier Foundation (EFF) have called on Facebook to be more proactive about for holding law enforcement agencies to proper standards. “If cops want to use Facebook for public purposes (and according IACP, most agencies find it a “very valuable” for community outreach, collecting tips and disseminating emergency information), then Facebook should make sure they know they must follow the same rules as everyone else,” they said in a post on the EFF website.

It may seem like fighting an uphill battle, but it’s an important one that would work towards better law enforcement accountability. When a Seattle police officer was caught peeing outside on cameras, Matt Driscoll at Seattle Weekly wrote a defense of why it’s important to hold the officer responsible even for something that may seem trivial:

Having recently spent nearly a month talking with frustrated business owners throughout the downtown core, fed up with the level of human waste left behind by homeless people, the “What’s the big deal?” reaction – to me – smacks of a double standard. The homeless have almost nowhere to legally use the bathroom. That’s why the city is planning for the installment of a Portland Loo in Pioneer Square, and why makeshift toilets have popped up in the meantime.

Is a peeing cop a huge deal? Certainly not. But it seems worth pointing out that for the homeless, even the call of nature has often become criminalized, and there’s no doubt this peeing cop – no matter how unexpectedly his Monster Energy Drink ran through him – could have found a legal place to do his business.

So far, the DEA still hasn’t admitted to any wrongdoing. But unless the government wants to shell out hundreds of thousands of dollars every time it wants to catfish a drug ring, hopefully it’ll hear this as a wake-up call to keep its enforcers in line.