With "Friends" Like These ….

“After accepting a ‘friend’ request from the officer, the defendant published a video recording to his social media account that featured an individual seen from the chest down holding what appeared to be a firearm. The undercover officer made his own recording of the posting, which later was used in criminal proceedings against the defendant.” No Fourth Amendment violation, says Massachusetts high court.

From today's opinion in Commonwealth v. Carrasquillo, written by Justice Gaziano:

In this case we confront the novel question whether the defendant had a constitutionally protected expectation of privacy in social media content that he shared, albeit unknowingly, with an undercover police officer.

After accepting a "friend" request from the officer, the defendant published a video recording to his social media account that featured an individual seen from the chest down holding what appeared to be a firearm. The undercover officer made his own recording of the posting, which later was used in criminal proceedings against the defendant. A Superior Court judge denied the defendant's motion to suppress the recording as the fruit of an unconstitutional search, and the defendant appealed. We transferred the matter to this court on our own motion.

Among other arguments, the defendant suggests that because his account on this particular social media platform was designated as "private," he had an objectively reasonable expectation of privacy in its contents. The Commonwealth contends that the act of posting any content to a social media account de facto eliminates any reasonable expectation of privacy in that content.

Given the rapidly evolving role of social media in society, and the relative novelty of the technology at issue, we decline both the defendant's and the Commonwealth's requests that we adopt their proffered bright-line rules. Rather, as with other questions of a reasonable expectation of privacy, each case must be resolved by carefully considering the totality of the circumstances, bearing in mind the privacy interests that the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights were designed to protect.

In the circumstances here, we conclude that the defendant did not have a reasonable expectation of privacy in the content that he shared with the undercover officer, and thus that no search in the constitutional sense occurred. Accordingly, we affirm the denial of the defendant's motion to suppress….

Without question, in this case the defendant's Snapchat stories were posted so as to be "[viewed] routinely by others," namely, his approximately one hundred Snapchat friends. Nonetheless, that the defendant electronically shared his stories with others itself is not determinative in these circumstances. Although we have held that individuals do not have a reasonable expectation of privacy in certain types of records they voluntarily conveyed to third parties, see, e.g., Smith v. Maryland, 442 U.S. 735, 742-743 (1979) (telephone call logs conveyed to telephone company); United States v. Miller, 425 U.S. 435, 444 (1976) (bank records provided to bank employees); Commonwealth v. Vinnie, 428 Mass. 161, 178, cert. denied, 525 U.S. 1007 (1998) (telephone billing records conveyed to telephone company); Commonwealth v. Cote, 407 Mass. 827, 835-836 (1990) (telephone answering service message records), we have declined to extend this reasoning to a number of broader circumstances, see Commonwealth v. Augustine, 467 Mass. 230, 251 (2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015) (cell phone user retains reasonable expectation of privacy in cell site location information [CSLI] conveyed to cell phone companies because such information is "substantively different from the types of information and records contemplated by Smith and Miller"). Given the constitutional regard for conversational and associational privacy, the types of information and records contemplated by Smith, supra, and Miller, supra, as well as Vinnie, supra, and Cote, supra, also are categorically different from social media conversations in a constitutionally significant way.

We recognize that a majority of courts to have considered the issue of the expectation of privacy in social media content have relied exclusively upon the third-party doctrine, and have concluded that, as the Commonwealth argues, once any content is posted on social media, no reasonable expectation of privacy remains. We continue to be of the view, however, that a categorical rule that individuals do not maintain a reasonable expectation of privacy in information provided to third parties through electronic sources is "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." Compare Chavez, 423 F. Supp. 3d 194 (W.D.N.C. 2019) ("In sum, Defendant manifested a subjective expectation of privacy in his non-public Facebook content that society is prepared to recognize as reasonable. As such, Defendant's legitimate expectation of privacy is protected by the Fourth Amendment"). Consequently, although an individual's choice to share social media content with others diminishes the individual's privacy interests, it does not per se defeat them.

Nonetheless, the defendant's privacy interest in this case was substantially diminished because, despite his asserted policy of restricting such access, he did not adequately "control[ ] access" to his Snapchat account. Rather, he appears to have permitted unknown individuals to gain access to his content. For instance, Connolly was granted access to the defendant's content using a nondescript username that the defendant did not recognize and a default image that evidently was not Connolly's photograph. By accepting Connolly's friend request in those circumstances, the defendant demonstrated that he did not make "reasonable efforts to corroborate the claims of" those seeking access to his account.

Once the possibility of an undercover officer being able to view virtually all of the defendant's Snapchat content materialized, the defendant's privacy interest was further diminished. Otherwise put, there is no constitutional remedy for "a wrongdoer's [mistaken] belief that a person to whom he voluntarily confides his wrongdoing" is not a government agent.

{We do not suggest that an individual who unknowingly accepts a friend request from an undercover officer necessarily loses any reasonable expectation of privacy in the individual's Snapchat content. If, for example, a police officer had gained access to an individual's account by masquerading as a close friend or family member, the result might be different. Given the difficulty of determining an individual's true identity over the Internet, it could be that such a misrepresentation would be such that a defendant did not actually assume the risk of providing access to an undercover agent.} …

The defendant maintains that his "permission" should not be considered valid, given that it was obtained via a ruse. That Connolly did not reveal his true identity to the defendant, however, does not vitiate the permission the defendant extended to him. Indeed, to hold otherwise would require police officers to "identify themselves as [such] when they investigate criminal activity," thus rendering "virtually all undercover work" unconstitutional. This we decline to do….