D.E.A. Identity Thieves
Two weeks ago, I wrote an article commending Apple and Google for introducing smartphone technology that encrypted user information so well that federal police couldn't access it even if the phone was confiscated under a search warrant. I began the story with a rather extraordinary viewpoint, from the head of the Federal Bureau of Investigations:
James B. Comey is upset because Apple and Google have recently announced that they will be providing privacy -- via strong encryption -- as a feature in their personal computing products. Comey reached out to the companies to convince them to change their minds about their decision to, as he put it, "market something expressly to allow people to place themselves beyond the law."
One counter to the argument I made in this article (which was basically: "Go Apple! Go Google! Right on!") is to wonder why any upright citizen would object to police searching their photos and data, especially under a court-ordered search. It's not like the cops are going to misuse that data, right?
Now comes a story first broken by BuzzFeed News, which is simply jaw-dropping. At least, that's the way I read it. It's an extensive piece with lots of details and example photos, but here is the crux of what happened:
The Justice Department is claiming, in a little-noticed court filing, that a federal agent had the right to impersonate a young woman online by creating a Facebook page in her name without her knowledge. Government lawyers also are defending the agent's right to scour the woman's seized cell phone and to post photographs -- including racy pictures of her and even one of her young son and niece -- to the phony social media account, which the agent was using to communicate with suspected criminals.
The woman, Sondra Arquiett, who then went by the name Sondra Prince, first learned her identity had been commandeered in 2010 when a friend asked about the pictures she was posting on her Facebook page. There she was, for anyone with an account to see -- posing on the hood of a BMW, legs spread, or, in another, wearing only skimpy attire. She was surprised; she hadn't even set up a Facebook page.
The account was actually set up by U.S. Drug Enforcement Administration Special Agent Timothy Sinnigen.
The Feds are arguing that because they had her cell phone, she had agreed to let them do anything they wanted with whatever they found on it -- including what can only be called "identity theft." She had no idea that the Feds were going to do this with her photos and info, and is suing because she never consented to any of it. What is absolutely beyond argument in this case is that the two small children in no way "consented" to having their likenesses be used to troll for criminals online.
The article continues with some legal reactions:
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."
The story was quickly picked up by the Washington Post, which did an even better job of itemizing what is at stake here:
The DOJ filing was in response to Arquiett's lawsuit. Consider what the federal government is arguing here. It's arguing that if you're arrested for a drug crime, including a crime unserious enough to merit a sentence of probation, the government retains the power to (a) steal your identity, (b) use that identity for drug policing, thus making your name and face known to potentially dangerous criminals, (c) interact with those criminals while posing as you, which could subject you to reprisals from those criminals, (d) expose photos of your family, including children, to those criminals, and (e) do all of this without your consent, and with no regard for your safety or public reputation.
The mindset that would allow government officials to not only engage in this sort of behavior, but to then fight in court to preserve their power to continue it is the same mindset that, for example, allows drug cops to compel juveniles and young women to become drug informants, with little regard for their safety -- and to then make no apologies when those informants are murdered. Or that would lead campus cops to let a teen slowly kill himself with heroin, because they could hold his addiction over his head to force his cooperation as an informant. Or that would allow a guy arrested on a possession charge to be abandoned for days in a jail cell, nearly killing him.
I should mention that that last paragraph has links, in the original story, for anyone who wants more details on the incidents the author is referring to.
Because of the higher profile of appearing in the Washington Post (one assumes), by the end of the day, the Justice Department was forced to issue a statement promising to review the practice:
The Justice Department said Tuesday that it will review federal law enforcement practices in light of an incident in which a federal agent used a woman's photographs and other personal information to create a fake Facebook account as part of a drug investigation.
. . .
Law enforcement officials declined to say whether the incident involving Arquiett was isolated or ran counter to federal law enforcement policy. Justice Department spokesman Brian Fallon said officials would review the incident and the practice of creating fake online profiles.
This is what happened to one woman, who didn't (as James Comey would put it) "place herself beyond the law" by making her smartphone data inaccessibly private. I guess "beyond the law" means, to the federal government, "not allowing us to steal your identity and use photos of you in your underwear and of your small children any way we can think up online."
Where are all the civil libertarians in Congress? Where is Rand Paul, for instance? Where is Darrell Issa, that supposed champion government-abuse overseer? Where is the congressional investigation into how many times this practice has been used, to whom, and who signed off on such practices? This has been going on for at least four years, so it would be very interesting to see how many times this tactic has been used. I seriously doubt it was only used in the one case where the woman was annoyed enough to sue the government, personally. There could be a lot more of these horror stories out there, just waiting to be told.
The D.E.A.'s position is, quite obviously, indefensible. This never should have been allowed to happen. Period. But at least some intrepid reporter brought it to light (long after the event, and only because the woman sued in outrage). At least now the Justice Department can create a new policy of swearing never ever to do this again without express permission from anyone involved. That is the very minimum reaction to this idiocy which is even acceptable, at this point.
But that misses the point. When outrageous behavior by federal agents is exposed to the public, policies can change and civil liberties can get better. Or the government can go right on abusing people's data, but at least the public will be aware of it (think: Edward Snowden's revelations). Reactions to such revelations are always to the good, because they either make government policy better or at the very least open people's eyes to what is going on.
But the main point -- the point I made two weeks ago, really -- is that the reason private citizens have a constitutional right to privacy in their papers and devices is to guard against what the government is doing right now that we haven't yet heard about, and to guard against any bright ideas they may come up with in the future. It's not the stories that get exposed that people have a right to protect themselves against -- it is the unknown ways government is continually dreaming up to invade their privacy. That's a polite way of saying "this won't be the last outrageous story about governmental misuse of data." Not by a longshot. If they can justify stealing a woman's identity (and two small children's to boot) and putting her in danger by their actions, then they can justify just about anything. Protecting against identity theft from criminals is one thing, but protecting against identity thieves we pay with our tax dollars is also every citizen's constitutional right.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
I think there is going to have to be some serious thought given to confiscation of cell phones. Sometime this month the new iphone will get Apple pay. Android has had it in some phone models for a while now but it's about to become mainstream. This mixed with home automation means that your cell phone could be your wallet, house keys, airplane boarding passes, control of your security system, heating system, home lighting system, home entertainment system. That is just what is possible now. Under those circumstances I had better be charged with at least a felony and stuffed in the back of the police car before law enforcement should have the right to take my phone. Just because it might have evidence on whatever they are working on is just not enough anymore considering how much the phone could control and how important that is to living my life day to day. You can take my fingerprints but that does not give you the right to take my right hand in the process...
Another interesting story today was out of the UK. There have been at least six known cases in the UK of people remote wiping their phones after they had been confiscated. In one case while the suspect was still in custody.
So....
How do you like Holder's DOJ now???
Still think he deserves all the accolades ya'll have given him recently???
Something about hoisting and Picards comes to mind... :D
Where are all the civil libertarians in Congress? Where is Rand Paul, for instance? Where is Darrell Issa, that supposed champion government-abuse overseer? Where is the congressional investigation into how many times this practice has been used, to whom, and who signed off on such practices?
Where's Obama??? Where's Holder???
These are the guys who ORIGINATED and IMPLEMENTED this...
Why don't you hold THEM accountable or, at the very least, give them dishonorable mention??
As THE leaders, Holder and Obama are ultimately responsible...
Where's the condemnation???
Michale
Bashi,
Under those circumstances I had better be charged with at least a felony and stuffed in the back of the police car before law enforcement should have the right to take my phone. Just because it might have evidence on whatever they are working on is just not enough anymore considering how much the phone could control and how important that is to living my life day to day.
So, you would agree that the severity of the crime should determine the level of access??
For example. If a scumbag kidnapped a child and stuffed him somewhere and there is likely evidence on the phone that would indicate where the child is, then authorities should have carte blanche in accessing the phone??
Michale
So, you would agree that the severity of the crime should determine the level of access??
Depends on who's phone. If I am a random bystander that might have footage of the situation, I should be asked to help but the police should not be able to just take my phone because there might be evidence on it. There has been too many abuses recently by authorities from the DOJ and NSA all the way down to cops on the beat. Don't like phone encryption, take your complaints to the NSA.
For example. If a scumbag kidnapped a child and stuffed him somewhere and there is likely evidence on the phone that would indicate where the child is, then authorities should have carte blanche in accessing the phone??
If it's the criminals phone, then yes. If it's encrypted, go the NSA. Their abuse of power got the local police in to this mess, their super computers can get them out. This country was founded on liberty. If a few must die to preserve it, so be it. Matter of fact, I think it's even on one states license plate...
Depends on who's phone. If I am a random bystander that might have footage of the situation, I should be asked to help but the police should not be able to just take my phone because there might be evidence on it.
But if time is of the essence and the police have a pretty good idea that vital information is there, I really don't have a problem with force being applied..
It all comes down to the age old question. At least age old as long as I have been on CW.COM :D
Is someone's personal privacy worth more than an innocent person's life??
Personally I think the answer is obvious...
If it's the criminals phone, then yes. If it's encrypted, go the NSA. Their abuse of power got the local police in to this mess, their super computers can get them out. This country was founded on liberty. If a few must die to preserve it, so be it.
The problem with that sentiment is that it's not the person whose privacy is being protected is the one to die..
In other words, if Joe Blow wants to die to protect his own privacy, more power to him. He can knock himself out.. I don't care..
But does Joe Blow have the right for an INNOCENT person to die to protect Joe Blow's privacy???
Again, I would think that THAT is a no brainer..
But maybe that's just me...
Michale
The obscure hypothetical does not justify more common abuse...
The obscure hypothetical does not justify more common abuse...
Over 100 children are kidnapped and brutally murdered every year...
The hypothetical is not as obscure as you like to tell yourself to assuage the guilt...
What it all boils down to is this.
By taking the stance that is being taken, the technology companies and ya'all are, in effect, saying that personal privacy is more important that an innocent person's life..
When ya boil away all the rhetoric and all the lame justifications and all the claims of obscure hypotheticals, THAT is what is left..
That personal privacy is more important than human lives..
I find that concept to be... alien. Probably because I have seen the aftermath...
Michale
What a bunch of garbage. If you really cared about innocent life, why aren't you fighting of a 35MPH speed limit with mandated engine suppressors so all cars no longer have the ability to go beyond that speed? That would save orders of magnitude more "innocents" than all your hypotheticals combined. And all you would have to sacrifice would be little convenience...
Over 100 children are kidnapped and brutally murdered every year...
You really want to put liberty at risk for .0000003% of the population at most? Freedom means that little to you?
Plus, any stats on how many of those hundred children would have been saved by the data on the phone? I'm guessing it's pretty close to zero. Plus the most likely useful data in that situation is location data and that is held by the carrier and available with a warrant.
You really want to put liberty at risk for .0000003% of the population at most? Freedom means that little to you?
Are you REALLY trying to balance the lives of 100 innocent children with my fear that pics of me in my wife's french maid outfit will be seen by law enforcement personnel???
Well, I'll have to think about that for a micro-fraction of a micro second..
YES I would whole-heartedly put the lives of .000003% of the US population before my own personal privacy...
What kind on insane selfish person WOULDN'T???
Plus, any stats on how many of those hundred children would have been saved by the data on the phone? I'm guessing it's pretty close to zero.
Unless it's a stone cold definite ZERO, you have no case...
Let me spell it out for you in words of one syllable..
My Personal Privacy Is NOT Worth The Life Of A Single Innocent Person...
And I would be willing to wager that ANYONE here would say the same thing, if they could see past their partisan blinders...
Plus the most likely useful data in that situation is location data and that is held by the carrier and available with a warrant.
Apparently, you are not up on current events.. The phones that prompted this discussion are NOT crackable by ANYONE.
So, even if the cops DO get a warrant, there isn't anything anyone could do..
Basically, the phone manufacturers are saying, "The privacy of a pedophile or a terrorist is more important than the lives of innocent people.. PERIOD"
And I am sure, if you really think about it, you would agree with me that THAT sucks...
Michale
My Personal Privacy Is NOT Worth The Life Of A Single Innocent Person...
And yet your ability to drive fast is...
Apparently, you are not up on current events.. The phones that prompted this discussion are NOT crackable by ANYONE.
And your knowledge of technology is woefully inadequate. Location data is logged by cell towers and held on carrier servers...
Basically, the phone manufacturers are saying, "The privacy of a pedophile or a terrorist is more important than the lives of innocent people.. PERIOD"
Ah, no. You are saying that. The manufactures are saying the privacy of innocent people is important to a free state, and more to the point helps sell phones. Also, most of what police would need in the case of both the pedophile or terrorist is available with a warrant: location data and wiretaps. Your phone is encrypted, much of what leaves your phone and travels over the internet/phone system is not...
And yet your ability to drive fast is...
Huh???
And your knowledge of technology is woefully inadequate. Location data is logged by cell towers and held on carrier servers...
I am not talking about GPS services.. Yes, in THAT particular case, that data is readily available even without a warrant.. I am talking about specific information on the phone itself..
Ah, no. You are saying that. The manufactures are saying the privacy of innocent people is important to a free state
And all I am saying is that privacy is NOT more important than innocent lives..
Am I wrong??
Also, most of what police would need in the case of both the pedophile or terrorist is available with a warrant: location data and wiretaps.
In a pinch, most if not all of that is accessible without a warrant..
We are not talking about that stuff..
We are talking about This mixed with home automation means that your cell phone could be your wallet, house keys, airplane boarding passes, control of your security system, heating system, home lighting system, home entertainment system.
Your phone is encrypted, much of what leaves your phone and travels over the internet/phone system is not...
There is a reason why it's illegal to possess certain encryption capabilities..
Let's cut thru all the felgercarp and lay out the question you are trying to dance around..
It's a simple question requiring no equivocation whatsoever...
Is your personal privacy more important to you than an innocent person's life..
Yes or no?
Michale
Let me put it to you this way..
If my grandson was kidnapped and Joe Blow Sixpack had pictures of the scumbag that did it on his phone and was exercising his right to privacy and refusing to give up said pictures, Mr Blow Sixpack would find a Remigton 12-Gauge screwed up his ass to give him some incentive to reconsider his civic duty...
NO ONE's rights, privacy or otherwise, is worth an innocent life...
It's only in today's ego-centric and ME FIRST, LAST AND ALWAYS societal mentality that such an issue would even have to be contemplated...
Michale
Huh???
See [8] above. We can come up with hypotheticals all day long that would save a "single innocent life". Why are some holier than others?
I am not talking about GPS services
Actually GPS is calculated from signals sent from satellites. It's a one way process. Every time your cell phone connects with a tower, it can log your general location. This is not just making a call. It's pretty much doing it all the time anytime it is on...
Is your personal privacy more important to you than an innocent person's life..
The constitutionally protected personal privacy of the entire country's populace is definitely worth innocent person's life.
If my grandson was kidnapped and Joe Blow Sixpack had pictures of the scumbag that did it on his phone and was exercising his right to privacy and refusing to give up said pictures, Mr Blow Sixpack would find a Remigton 12-Gauge screwed up his ass to give him some incentive to reconsider his civic duty...
And Joe Blow Sixpack would be dead, so would your grandson and you would be in prison for murder. Wow, some high level problem solving there...
NO ONE's rights, privacy or otherwise, is worth an innocent life...
The USA has been involved in quite a few wars during it's existence that say otherwise...
The constitutionally protected personal privacy of the entire country's populace is definitely worth innocent person's life.
We'll just have to disagree on that...
I am not so selfish as to think my personal privacy is worth anyone's life..
I am surprised to learn that such a thought is in the minority of one around here..
Michale
And Joe Blow Sixpack would be dead, so would your grandson and you would be in prison for murder. Wow, some high level problem solving there...
They would never take me alive!!! :D
But in the REAL world, Joe Blow Sixpack would have pee'ed his pants and given up the pictures, my grandson would be home save and sound and I would be given a medal... :D
Michale