Let me pose a question. Do the ends justify the means? Well do they? If that question was asked of the United States Drug Enforcement Agency they would probably have no problem answering. It would be a yes. It would be an emphatic yes with bells on.
Now I have a big problem with the fact that they have no problem. I do. In my view there is never a time when doing whatever it takes, to get a result, can be justified. Rules and regulations and laws apply to the good guys in exactly the same way that they apply to the baddies. So never is my answer. But I’m not here to tell you what to think. Let me outline the scenario and you can answer that question for yourself.
The U.S. DEA is being taken to court after setting up a fake Facebook account using real photographs and personal information seized from the mobile phone of a New York woman.
To be fair, the woman concerned was arrested in July 2010 on charges of possession with intent to distribute cocaine. She was accused of being part of a drug distribution network run by her boyfriend. The court records show she pleaded guilty to a conspiracy charge and was sentenced to time already served as well as community detention.
She could have been sentenced to life imprisonment but instead she received a significantly reduced sentence in return for a plea agreement where she acknowledged being part of the drug syndicate. The court records clearly show she participated in jailhouse conversations with co-conspirators so it was a no brainer to plead guilty.
But here is a critical point. The records do not show that she agreed to testify against any of her co-conspirators. In other words she did not agree to help the DEA in busting the others. Which makes what happened next somewhat troubling and perplexing.
The DEA got hold of her private mobile phone and used it to set up a fake Facebook account in her name. By doing so it hoped to fool her friends and associates into revealing incriminating drug secrets. The fake Facebook account looked like the real thing. It included photos of the woman posing seductively on the hood of a BMW convertible. It showed a close up photo of the woman and her niece and nephew. She appeared to write that she missed her boyfriend and to make it look one hundred percent authentic she even used his nickname in the post.
Now the woman at the center of this case, has filed a lawsuit in which she claims the fake social media account was created by a DEA agent. The US Justice Department says in response that while the woman did not directly authorize the DEA agent to do what he did, she “ implicitly consented by granting access to the information stored in her cellphone and by consenting to the use of that information to aid in…..ongoing criminal investigations.”
Now again I don’t know about you but I don’t find that justification particularly convincing. The Justice Department is also arguing that the Facebook account was private and not publicly seen by all Facebook users. But again I fail to see how that would make a difference.
Facebook’s own policies clearly prohibit the practice. They state that a user “ will not provide any false information on Facebook, or create an account for anyone other than yourself without permission.” There is nothing in any of the documents filed so far to indicate that permission was either sought or granted. Facebook is refusing to comment.
The Attorney for the woman claims her client suffered fear and great emotional distress. Her life has been put in danger because the fake Facebook page gave the impression that she had co-operated with the DEA in setting it up. She is also claiming $280 thousand damages.
The case raises a number of important issues and demonstrates that the legal standards for privacy are struggling to keep up with changing technology. While social media platforms can be of great benefit to a criminal investigation, the issue of individual privacy and where it begins and ends will be extremely difficult for the legal system to navigate.
One American Civil Liberties lawyer has described the Justice Department’s defense of their actions as laughable.
He says if an individual is co-operating with law enforcement and the police say can I search your phone? The expectation is that they will search the phone for evidence of a crime. But there can be no expectation, or justification for taking other personal information and using it in another context.
The US Justice Department while initially going hard in its defence of the DEA seems to be softening its approach a little. It says officials are reviewing this particular case and what has been generally accepted practice in the past. Law enforcement bodies routinely use fictitious online profiles in their investigations, especially in cases involving child pornography or the sexual grooming of children. But it has not been made clear how many times a real person’s identity was used in this way.
Which brings me back to my original question. In the case that we have been talking about, did the ends justify the means?