POSTED BY Natasha Meserve
The Drug Enforcement Agency has used a fake Facebook profile to gather information for a criminal drug investigation and is currently being sued by a woman for using pictures taken from her cellphone.
This past week, the Drug Enforcement Agency (“DEA”) used a woman’s cellphone pictures to create a fake Facebook profile in order to gather information about members of a drug operation. The woman was arrested as a member of a New York drug ring, but was not a major part of the ring. The detective in the case used her cellphone pictures to create a Facebook profile, which he operated as part of the investigation. A woman, Sondra Prince (Arquiett) (“Prince”), is suing for damages for the use of her pictures by the DEA without her permission, in which the detective actively used her profile for three months. Prince was arrested and found guilty for distribution of cocaine, but investigators were looking for the big players in the drug ring and believe her boyfriend runs it.
The agency argued that Prince gave implicit consent when she consented to aid in the criminal investigation, which apparently extended to the use of her cellphone pictures. The DEA is now being questioned after the news went viral, as to whether it went too far in violating her rights, and if this was an invasion of her privacy and First Amendment rights. The DEA denied that it did anything wrong because Prince had relinquished her rights to privacy by giving up her cellphone in the process of the investigation. However, does this mean that Prince granted access to the DEA to use her private photos, especially consenting to the use of them online to ruse suspects? This sometimes can be a misstep in the law enforcement world because individual rights to privacy are be violated regardless of one’s criminal background. The DEA should be liable for misuse of Prince’s photos. Her cellphone was supposed to be used for the investigation for her conduct, not in the use of the investigation with private pictures of her and her family.
In regards to defendant’s First Amendment rights, the right to privacy is of immense importance and should always be considered in legal investigations. For example, in Bailey v. City of Port Huron, 507 F.3d 364 (2007), the court ruled that defendants’ rights are not constitutionally protected when it concerns disclosures of name, hometown, photograph etc. However, a plaintiff can overcome the immunity of the agency if it can be established that a constitutional right has been violated such as a disclosure of personal matters. This case could be decided by the court either way, but more than likely it will be determined that her right to privacy was not violated. In such case, Congress needs to enact legislation to address these issues, as they will become more prominent in future investigations given the extensive use of social media.
BIO:
Natasha is a Staff Member of the Journal of High Technology Law. She is currently a 2L at Suffolk Law with an interest in Health and Biomedical Law. She holds a B.A. in Psychology and minor in Biology and English from the University of Louisville, Kentucky.
