Massachusetts high court expands social media privacy rights

BOSTON (CN) — A man who was careless with his privacy settings and accepted an anonymous “friend request” from someone who turned out to be an undercover cop became the unlikely catalyst Monday for a Massachusetts Supreme Judicial Court decision that expands the privacy rights of social media users.

Writing for the unanimous court, Justice Frank Gaziano declined to adopt what has been the prevailing view "that … once any content is posted on social media, no reasonable expectation of privacy remains."

The opinion also quotes the Supreme Court's Justice Sonia Sotomayor, who said such a categorical rule 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."

And so to determine whether police can engage in social-media snooping, “each case must be resolved by carefully considering the totality of the circumstances,” Gaziano wrote — a steep hurdle for police, as they won’t necessarily be able to tell in advance whether any snooping they do will result in evidence that can be used in court.

“For many, social media is an indispensable feature of social life through which they develop and nourish deeply personal and meaningful relationships,” Gaziano said. “Government surveillance of this activity therefore risks chilling the conversational and associational privacy rights that the Fourth Amendment ... seek[] to protect."

The defendant, Averyk Carrasquillo, was arrested shortly after posting a video on Snapchat that showed him with a gun, which as a former felon he wasn’t allowed to possess.

Boston police officer Joseph Connolly had friended Carrasquillo on Snapchat using a randomly generated fake name and a default profile picture. Carrasquillo accepted the request. Connolly didn’t have a warrant at the time; in fact he didn’t even have any specific reason to think Carrasquillo was doing anything wrong.

The prosecution took the position that there is no right to privacy in social media, period, and the police can conduct unlimited, open-ended social-media surveillance of anyone they want for any reason or no reason. Many courts have agreed with this argument on the theory that, once you post something to social media, anyone can copy and share it, so you have given up any right to privacy.

The Massachusetts Association of Criminal Defense Lawyers called this a “sinister” and “totalitarian" idea in an amicus brief. But it’s one that law enforcement has embraced. In New York, police routinely spend hours scrolling through the social media accounts of teenagers looking for possible gang activity, often creating fake accounts in the guise of attractive teenage girls to get friended.

A study back in 2014 revealed that 81% of police officers use social media in investigations, and 80% think it’s ethical to create fake accounts to get a suspect to friend them.

Indeed the Massachusetts court held last year that a defendant had no privacy interest in a text message he sent to a friend that appeared on the friend’s phone.

But Snapchat is different from a text message because Snapchat posts are designed to self-destruct after a limited period of time, the court said, so they’re akin to “a letter written in disappearing ink.”

The court nevertheless held against Carrasquillo on Monday. It said he didn’t have a reasonable expectation of privacy in his posts because he stated that he was “not too sure” what his privacy settings were and he accepted an anonymous friend request without inquiring who the person was.

Still, the decision will be heartening for privacy advocates because it suggests that people who are careful with their privacy practices may have some protection against unlimited snooping.

If police are allowed to engage in unlimited social media surveillance, they could target racial minorities, immigrants, activists and people who have publicly criticized law enforcement, said Rachel Levinson-Waldman, a deputy director of the Brennan Center at the New York University School of Law, who has published several law review articles on the topic.

In Memphis, she noted, police were caught using fake Facebook profiles to target Black Lives Matter protesters.

One reason police are using fake profiles so much is that the social media companies have become very hesitant to simply give law enforcement access to people’s accounts, Levinson-Waldman said. The major platforms are “all pretty strict” and often require a warrant, she noted.

Unlike the other major platforms, Facebook has a “real name rule” that requires users to have only one account and to identify themselves truthfully. But while Facebook can spot large-scale abuses, it’s unlikely to catch individual cops, Levinson-Waldman said — and even in cases such as the Memphis scandal, all Facebook did was send the police a polite letter asking them to stop.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit