BOSTON (CN) — The Massachusetts Supreme Judicial Court struggled Wednesday to figure out whether police can use trickery to conduct unlimited surveillance of social media accounts even if they have no reason to think that anyone did anything wrong.
The justices seemed to think that officers can generally conduct undercover operations but they were troubled by the idea that nothing on social media is truly private.
“The breadth of this is what is worrisome,” Justice Scott Kafker complained to Boston-area prosecutor Ian MacLean. “I get that cops are doing this to detect kiddie porn, but you’re saying they can just go out on social media exploring. You may be right, but it’s concerning that they can just go through people’s social media and go hunting. You’re saying they can do that, right?”
“Yes,” said MacLean, an assistant district attorney for Suffolk County. “In the same way cops can approach random people on a street corner.”
“But people’s whole lives are on social media,” Kafker shot back. “I’m not saying you’re wrong but it’s concerning. The problem we have is social media are as revealing of our personal lives as our houses.”
The defendant in the case, Averyk Carrasquillo, was arrested shortly after posting a video on Snapchat that showed him with a gun. He is not allowed to possess one as a former felon, but the government did not have a warrant to monitor his social media.
Indeed when Boston police officer Joseph Connolly friended him on Snapchat using a fake name, he didn’t even have any reason to suspect that Carrasquillo was doing anything wrong.
Carrasquillo does not have an explanation for why he accepted the request despite purporting to only accept people he knew as friends. At trial in 2017, Carrasquillo proved unable to suppress the evidence on Fourth Amendment grounds.
He conditionally pleaded guilty, preserving his right to appeal, after that motion was denied. Lacking a basis for a warrant, the government was forced to argue that police have a right to trick people into letting them conduct unlimited, open-ended social-media surveillance of anyone they want for any reason or no reason.
The Massachusetts Association of Criminal Defense Lawyers called it a “sinister” and “totalitarian" idea, in an amicus brief. Yet in most cases, courts have held that citizens have little if any privacy rights in social media, according to 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.
One reason is the “third-party doctrine,” which says that you lose your privacy interest in information that you communicate to a third party. The Massachusetts court used this doctrine three months ago to hold that a defendant had no privacy interest in a text message he sent to a friend that appeared on the friend’s phone.
Another reason is that police conduct undercover operations all the time and use trickery to get access and information.
But police usually have a warrant for undercover stings, the defense lawyers’ association pointed out. And there’s a difference between using trickery to gain one-time entry to a suspicious place and using it to gain permanent, unlimited access to people’s entire online life when there’s no reason to suspect that they did anything illegal.
That hasn’t stopped the cops. 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.
Carrasquillo’s lawyer, Suzanne Renaud, argued that her client had an expectation of privacy because he had set his account to private.
“So it’s like a circle of trust, to quote Robert DeNiro,” joked Justice Frank Gaziano.
Justice Serge Georges objected that “a really big wedding isn’t a public wedding, but if an account owner indiscriminately accepts people and has 1,000, 2000 or 3,000 friends, at what point does it become absurd to say there’s a reasonable expectation of privacy?”
The justices seemed more concerned that police were targeting people without any reason to suspect them of wrongdoing.
This case was “a fishing expedition” against “a regular guy,” argued Renaud.
Gaziano asked if there were any cases that required police to have suspicion, and Renaud couldn’t point to any, but she said the problem is that new technology makes it easy and cheap to follow large numbers of people and just wait to see if they commit a crime.
Levinson-Waldman worried that if there’s no requirement of reasonable suspicion, police can use social media surveillance to target racial minorities, immigrants, activists and people who have publicly criticized law enforcement.
In Memphis, she noted, police were caught using fake Facebook profiles to target Black Lives Matter protesters.
Justice Dalila Wendlandt suggested that social media snooping was similar to undercover cops “sitting on the Boston Common and waiting to see if people offer them drugs.”
“But in that case you’re creating” the interaction, Georges observed. “Here, you can sit back and watch. You’re just sitting back and waiting for people to step in it.”
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.
The Massachusetts justices struggled with the issue in part because they simply don’t understand social media very well. The recent case involving text messages contained a footnote saying it didn’t necessarily apply to “ephemeral” media such as Snapchat, but MacLean surprised the court by noting that someone who receives a Snapchat message can take a screenshot of it.
“I didn’t know that.,” said Justice David Lowy. “I didn’t understand that was the technology. This is so far over my head.”
“So we shouldn’t have written the footnote,” said Gaziano, who wrote the footnote. “It’s a nothing-burger.”
Chief Justice Kimberly Budd sighed. “I should probably ask my children about this,” she said.
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