A Good Reason to Encrypt Your iPhone: To Prevent DEA from Creating a Fake Facebook Account

At Salon yesterday, I pushed back against the Apple hysteria again. In it, I look at the numbers that suggest far more Apple handsets are searched under the border exception than using warrants.

Encrypting iPhones might have the biggest impact on law enforcement searches that don’t involve warrants, contrary to law enforcement claims this is about warranted searches. As early as 2010, Customs and Border Patrol was searching around 4,600 devices a year and seizing up to 300 using what is called a “border exception.” That is when CBP takes and searches devices from people it is questioning at the border. Just searching such devices does not even require probable cause (though seizing them requires some rationale). These searches increasingly involve smart phones like the iPhone.

These numbers suggest border searches of iPhones may be as common as warranted searches of the devices. Apple provided account content to U.S. law enforcement 155 times last year. It responded to 3,431 device requests, but the “vast majority” of those device requests involved customers seeking help with a lost or stolen phone, not law enforcement trying to get contents off a cell phone (Consumer Reports estimates that 3.1 million Americans will have their smart phones stolen this year). Given that Apple has by far the largest share of the smart phone market in the U.S., a significant number of border device searches involving a smart phone will be an iPhone. Apple’s default encryption will make it far harder for the government to do such searches without obtaining a warrant, which they often don’t have evidence to get.

Almost 20% of Americans this year will have an iPhone, and that number will be far higher among those who fly internationally. If only 20% of 5,000 border searches involve iPhones, then there are clearly more border iPhone searches than warranted ones.

Meanwhile, we have an appalling new look at what law enforcement does once it gets inside your smart phone. A woman in Albany is suing DEA because — after she permitted DEA to conduct a consensual search of her phone — DEA then took photos obtained during the search, including one of her wearing only underwear, and made a fake Facebook page for her with them. They even sent a friend request to a fugitive and accepted other friend requests. They also posted pictures of her son and niece, on a site intended to lure those involved in the drug trade.

And they consider this a legitimate law enforcement activity!

In a court filing, a U.S. attorney acknowledges that, unbeknownst to Arquiett, Sinnigen created the fake Facebook account, posed as her, posted photos, sent a friend request to a fugitive, accepted other friend requests, and used the account “for a legitimate law enforcement purpose.”

The government’s response lays out an argument justifying Sinnigen’s actions: “Defendants admit that Plaintiff did not give express permission for the use of photographs contained on her phone on an undercover Facebook page, but state the Plaintiff implicitly consented by granting access to the information stored in her cell phone and by consenting to the use of that information to aid in an ongoing criminal investigations [sic].”

To be sure, DEA and FBI would still be able to obtain consensual access to phones, as they did in this case, by threatening people with harsher charges if they don’t cooperate (which appears to be how they got her to cooperate).

But this demonstrates just how twisted is the government’s view of legitimate use of phone data. The next time you hear a top officer wail about pedophiles, you might ask whether they’re actually the one planning to post sexy pictures.

24 replies
  1. bloopie2 says:

    Agree 100%. Still, I question why she would carry around pictures of herself in her underwear? Why did she need access to that material, outside of her home? Or at all? There are plenty of things we all do every day to minimize risk to ourselves, physically, financially, etc. Just because you CAN do something, doesn’t mean you SHOULD do it.

    So there.

    • EH says:

      Bloopie, there is absolutely no reason to have to worry about law enforcement publicizing those pictures. Don’t blame the victim.

    • P J Evans says:

      How many people know about the border exception?
      How many people use their smartphones for everything?
      She had a reasonable (if incorrect) expectation that they wouldn’t search her phone without a warrant and probably cause.
      Setting up a fake FB account with her name, using the stuff from her phone, for any reason, is way out of line even for law enforcement. (They don’t have stuff like this in their own files already that they can use? They can’t fake it by themselves, so they have to steal data from ordinary citizens?)

  2. Snarki, child of Loki says:

    I just hope that Anonymous is paying attention, and creates some Facebook accounts for these DEA slimeballs.

    • bmaz says:

      And if they do, I hope they are caught and put in prison. Little jackass internet vigilantes are not the answer to anything.

      • bloopie2 says:

        Agreed. If you want to ‘strike back’, do it perfectly legally and out in the open. For example, set up some cameras on the (totally public) sidewalks outside NSA headquarters, or various FBI field offices, and film everyone coming and going. (Remember, taking pictures is not a crime.) Use the license plate numbers obtained to find out (via the legal publicly available databases the states maintain) who all the employees are and where they live. Do standard Internet background research and learn all about their families from publicly available information. Then post everything on the Internet, under the heading of “Are they working for you or against you?”

        Then, stand back, and call your lawyer!

        • lefty665 says:

          Might want to start by calling your lawyer. Likely find that Ft. Meade has some base regs about people wandering around taking pictures of NSA HQ. Even The Intercept took the precautions of getting OKs before taking standoff pics of NSA and other defense facilities in the D.C. area from the air.
          Numerous people have been busted for taking innocent tourist pics since 9/11. I believe those restrictions were part of the misbegotten “Patriot Act”. I’m sure someone here can give us chapter and verse.
          Local cops and pictures are a different story, but that does not generalize to “national security” places and things.

            • lefty665 says:

              Something to hide or not, it is a violation of the law. 18 USC 795 – Photographing and sketching defense installations. I’m not a lawyer, but that section of the code is pretty simple. Photographing defense installations without permission can get you busted.
              look here for the code itself: http://law.onecle.com/uscode/18/795.html
              Publication or sale of images of defense installations is a separate offense 18 USC 797
              I leave it to someone else to explain how those restrictions have been expanded to include other people, places and things, like critical infrastructure, post 9/11.
              Photographing cops is a separate issue. Have at it, you’re right it’s legal, but be ready for the cop to express his displeasure personally.

              • bloopie2 says:

                Then I will just photograph the people coming and going. Post their names, faces, license plate numbers, where they work, when they come and go, etc. That’s all publicly available information from standing anywhere, right? Any NSA employee got a problem with that? Actually, come to think of it, it’s just metadata anyhow, isn’t it? Location and all that? Put the entire visible life of an NSA employee or FBI agent online, and see how they like it.

  3. Anon says:

    The thing is that the fact that this was done could be attributed to bad training or a bad agent until they went to court. Once the case gets to court and you have prosecutors defending the practice as legitimate then they are no longer off in the weeds but one part of the system protecting the other and to hell with what is right.

  4. Anon says:

    As a related question, why her in her underwear? If they just needed a fake ID why not just download some stock art or porn?

  5. orionATL says:

    law enforcement in the u.s. has a job to do. it is NOT the most important job over all others. medicine, teaching, food production and distribution are far more important. it is not entitled to operate outside our laws and constitution.

    law enforcement and judges and prosecutors have allowed law enf. to operate outside the law, sometimes egregiosly, often criminally – routinely wounding and murdering, stealing phones and cameras and large sums of cash, lying on the witness stand to grand juries and juries, assaulting citizens and falsely arresting them.

    we have a nation of brutal police who feel entitled to be brutal, police who operate with impunity and official protection like raging trained doberman attack dogs.

    only the citizens of ferguson have had the guts and desperation to fight this repressive army in the only way it can be fought to force change, in the street and with violence. hence the dept of homeland security equipment given to police. hence the dhs training of officers before brutalizing the occupy movement with tactics from iraq. hence the fbi training re “mass killings”, aka long magazine-assault rifle specials.

    • orionATL says:

      al-jezeera reports:


      “..”The rule of law is essential to our constitutional system of government, and it applies equally to law enforcement officers and to other citizens,” said the order issued by U.S. District Judge Catherine D. Perry. She issued a preliminary injunction halting the five-second tactic, holding that it violates protesters’ First Amendment and due process rights.

      The ACLU called the decision a major victory…”

      “..In addition to First Amendment concerns, the judge said the policy also violated citizens’ due process rights because it was arbitrarily enforced and left to the “unfettered discretion of the officers on the street.”…”

  6. orionATL says:

    listen to the police these days. they openly WHINE. they openly ask for our understanding of their whining about their own safety.

    recent public comment – ” i was in fear for my life, i was in fear for the lives of my fellow officers.”

    this guy mentioned concern for the wellbing of the public last in his comment.

    which other ones of us, his fellow citizens, get to kill someone with impunity on the mere suspicion of danger for his life?

    • jerryy says:

      If the SFGate’s report is accurate, how is this not:
      1) endangering children (Supposedly actual photos of her nephew and niece were posted — this was done as an investigation into some serious charges concerning drug distribution, drug dealers have been known to kill family members)?
      2) repeated violations of the Computer Fraud and Abuse Act?
      Just as an aside, any photos lurid or otherwise she had on her phone are her business, I have some on my phone of my cat and dog and some good landscape shots, but that does in no way make me a better person than her.

  7. earlofhuntingdon says:

    And this from a government that would spend its [our] last dime defending Disney from any unlicensed use of a single DVD.
    Needless to say, consenting to a government search of a phone for law enforcement purposes does not amount to giving consent to the unrestricted, here dangerous and defamatory, use of data on it. It’s not even giving any consent to use of the data, except in pursuing a criminal complaint directly in connection with data found on the phone.

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