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Fourth Amendment

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.

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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….

NEXT: No Pseudonymity in Challenge to Justice Department's "China Initiative"

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  1. Do people who take a broad view of saying disclosure to third parties discloses to the world take the view its logical extent, e.g. that no warrant is needed to tap a 3-person conversation, a 3-way phone call, or a private household with nore than 2 members?

    1. Good question, but I don't know the answer; I am pretty much the opposite, and would consider this particular case to be entrapment besides.

      On the other hand .... I do at least understand the logic here, that if the guy wanted privacy, why would he accept a friend request from an utter stranger? Or is there more to the story, such as the wannabe "friend" offering various statements contending, or at least implying, that they had met before?

      And on the third hand, what was illegal about the photo? Was he a felon?

      Eh. Don't post pictures which you don't want the world to see. Two people can keep a secret only if one is dead.

      1. Once Frio Fresh accepted [Officer] Connolly's friend request, Connolly was able to view stories posted to that account and would have been able to receive any direct snaps sent to him. After viewing multiple video recordings, Connolly came to believe that the Frio Fresh account belonged to the defendant. Connolly was familiar with the defendant through his work with the youth violence strike force and knew that the defendant was prohibited from carrying a firearm due to prior criminal convictions.

    2. Is a warrant required for an undercover officer to record a phone call that they are a party to?

      Your logical leap from "party to" to "illegal wiretap" is unconvincing.

      1. But the court here rejected the 3rd party disclosure rule and focused on the fact the officer was invites without any more deception than an undercover officer would normally used.

        But the state wanted a stronger position. It argued that anyone who posts to a group on Facebook posts to the world, on grounds that if you let 3rd parties have access to your material, it’s no longer private. And a broad reading of “3rd party disclosure” has some support. If one follows the state’s position to its logical conclusion, a 3-way conversation or phone call wouldnmt be private. Disclose to a 3rd party, disclose to the world.

        So while witetap laws might still apply, the 4th Amendment under Katz wouldn’t. A person engaged in a conversation involving 3 or more people would have no reasonable expectation of privacy.

        1. What 3rd party is involved here?

  2. There’s no totality.

    Before lying his way into the young man’s circle of trust, the cop could have obtained a warrant for access to the account.

    He didn’t.

    The evidence should have been thrown out.

    Courts shouldn’t cover for the laziness of police who use lies to gain access to information they did not or could not obtain through honesty.

    1. The opinion specifically said that lying your way in, like masquerading as someone else, is a different story. But he accepted some random friend request of someone he didn't recognize. That's just dumb, and he properly pays the price. If you're going to let any random person view your content, it's not private.

      1. The defendant’s stupidity doesn’t excuse the cop’s lack of a warrant or judicial review of his intended subterfuge.

        The reason for the friend request was not based on any articulated suspicion of criminality. The kid has a record; so what? The cop hadn’t observed a new crime. He hadn’t received a tip of a new crime.

        Instead, using just his gut, he lied and got access to the defendant’s virtual home. If he did that at a real home, we wouldn’t be having this conversation.

        If there was no exigencies, the cop should’ve taken 15 minutes out of his day to seek permission of a judge to enter the defendant’s virtual home.

        Let him say “Your honor, I’m not a probation officer. I don’t have any legal reason to inspect this defendant’s account. But will you please let me do it anyway?”

        Laziness should not be rewarded with a decision to keep the evidence.

        1. The defendant’s stupidity doesn’t excuse the cop’s lack of a warrant or judicial review of his intended subterfuge.

          I mean, it literally does do exactly that.

          Instead, using just his gut, he lied

          No. Please stop saying this, when that was explicitly rejected as a factual finding.

          If there was no exigencies, the cop should’ve taken 15 minutes out of his day to seek permission of a judge to enter the defendant’s virtual home.

          Even if "virtual home" is a thing, he didn't need permission from a judge, because he had permission from the virtual homeowner.

    2. I think the court was right here. Undercover cops lie their way into situations where they can decieve potential ceimonals into thinking they are friends all the time, and do so without necessarily having probable cause.

      A sting operation often simply set up shops as a fake criminal enterprise and then see who calls them for their goods or services, or an undercover cop goes to a hangout and pretends to fit in. If a crook invites someone into their home belieeving that person to be a genuine crook, no warrant is needed.

      What makes this different? The fact this happened on Facebook and not in the brick and mortar world doesn’t change the essential nature of the constitutional issues.

  3. I thought the opinion went on far too long. He voluntarily allowed a stranger to see his incriminating evidence, taking the risk that the stranger could be an informant or worse. The thirty party doctrine doesn't matter. There was no credible claim that the defendant subjectively thought his new "friend" could not see his video. And the meant-to-be-ephemeral nature of Snapchat does not change the fact that a witness can testify to having seen something that no longer exists.

    1. If the cop had been doing his job according to his training, he would’ve been recording his interactions with a video camera or with a second witness.

      It should be considered testi-lie, unless proven otherwise.

      1. He did use a camera to record the ephemeral image. But he could have testified without any evidence to back up his word. And the standard to get a search or arrest warrant is lower than the standard to convict. That's true of both the formal burden of proof (there is a good chance it is true vs. no reasonable doubt) and the informal burden (convince a magistrate whose job is to believe cops vs. convince 12 urban cop skeptics).

        1. He did use a camera to record the ephemeral image.

          It's like Mr. 4019597 didn't bother to read any of the facts before bloviating.

  4. Recalling the manhandling of Patricia Konie in New Orleans by California Highway Patrol dragging her from her home on dry Magazine Street after Katrina: and the exchange between Channel 2 San Francisco newscaster and on-the scene reporter:
    Q:"It is obvious they will use physical force to remove someone who does not want to go, the obvious question now is would they use deadly force?"
    A:"Well, I don't think so, Dennis. I mean here you had a woman with a gun. She's elderly, she does not appear to be a threat but a gun is a gun ...."

    The guy in Massachusetts posted a picture of a gun.
    A gun is a gun.
    That changes everything.
    The guy in Massachusetts is lucky he wasn't SWATted in a no-knock raid.
    To some folks, if "gun" is involved, Constitutoon and reason go out the window.

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