Social media has changed the way we live, work and interact with everyone from our closest friends to the government and businesses. Along with all the benefits, though, a gray area has developed regarding the legality of the government's access to our information. Can police officers read messages on your phone if they confiscate it when you’re arrested? (Answer: The Supreme Court says they need a warrant.) Should Google be allowed to scan your e-mails and direct targeted ads your way? (Answer: It’s complicated.)
Or, as we reported back in October, can law enforcement agents use your photos if they believe you’ve granted “implicit consent” by handing over your mobile device?
That’s what happened to Sondra Arquiett. After surrendering her phone to police following her arrest for alleged drug law violations, Sondra found that pictures of her, her son and niece had been copied and used by the Drug Enforcement Agency (DEA) to create a fake Facebook page. The page was intended to help DEA agents gather information about individuals suspected of violating drug laws. The U.S. Justice Department defended the DEA’s actions and argued that by allowing agents to access her data at the time of her arrest, Arquiett implied that the DEA was authorized to use the data on her phone for any other purpose. Arquiett understandably objected after she learned the DEA used her photos to create a fake Facebook page and sued the government with the help of digital rights and privacy groups.
Now, despite the Justice Department’s continuing refusal to acknowledge any wrongdoing, it has settled Arquiett’s lawsuit for $134,000, with her lawyers commenting, “the U.S. Attorney’s office recognized that this was totally inappropriate on the part of the DEA agent.” Sadly, the U.S. government has still not ruled out using similar tactics in the future.
In many ways this case is made tricky by the semantic nature of the police officers’ arguments. Arquiett agreed at the time of her arrest to surrender her phone and consented to officers accessing its data to help them with related criminal investigations. That much is clear and has never been contested. Arquiett never consented, however, to the creation of a publicly accessible Facebook page using an established alias, Sondra Price. Some of the content used – pictures of Arquiett in her underwear, as well as photographs of her son and niece – has also been particularly controversial. On top of this, Facebook itself has criticized the move, pointing out that it forbids fake profiles even in cases involving police officers and ongoing investigations.
While it’s good that Arquiett has received compensation from the federal government, the money doesn’t do much to address the original problem; namely, that police officers believed they could take and use private data contained on a suspects’ cell phone.
It's worrying that the Justice Department refuses to admit wrongdoing even as it settles the lawsuit, faces criticism from privacy groups, and faces objections from Facebook. The idea that DEA agents could obtain and use citizens’ data and photos under the assumption that they’ve somehow consented raises a number of questions. For example, who gets to decide when implied consent has been given? How far can the government go in taking, storing and using data? Do citizens have to specifically request their data not be used to create fake social media accounts if they consent to a search of their cell phone? The burden should never be upon individuals to ensure that the federal government doesn’t misappropriate their digital property.
Conversely, the burden of requesting and gaining explicit consent for the use of one’s data must fall on the government. While Arquett’s case reflects a specific set of circumstances (the fake profile was made so that the DEA could send a friend request to specific suspects in an ongoing investigation), it’s still a potent warning that when it comes to social media and the law, there are plenty of things left to work out. The quickening pace of technological innovation is improving our world, but we must also take steps to ensure that privacy is protected and property remains with its rightful owners – even when that property is pictures stored on a phone.