With “Friends” Like These ….

We are now faced with the unusual question whether this defendant had a constitutionally protected expectation that privacy was maintained in the social media content he shared unknowingly with an undercover officer.

The defendant accepted a friend request from the officer and posted a video to his Facebook account. It featured an individual from the chest holding what looked like a gun. An undercover officer recorded the recording and later used it in criminal proceedings against defendant. As the product of an unconstitutional look, a Superior Court judge rejected the defendant’s motion that the recording be suppressed. The defendant appealed. This court was referred to us on our own motion.

The defendant also argues that, because the account was “private”, he could have an objectively reasonable expectation about privacy. According to the Commonwealth, any expectation of privacy is eliminated by posting content on a social media account.

Due to the changing role of social media within society and the novelty of this technology, both defendant and Commonwealth request that we follow their bright-line rules. As with any question of reasonable privacy expectation, every case should be carefully considered. Each case must also take into account the entirety of the facts, taking into consideration the privacy rights that are protected by the Fourth Amendment of the United States Constitution. The Massachusetts Declaration of Rights 14 was created to safeguard.

Given the context, the court finds that there wasn’t a reasonable expectation that defendant would be protected from his conversations with undercover officers. Therefore, no search was made in accordance to the Constitution. Accordingly, we affirm the denial of the defendant’s motion to suppress….

It is obvious that Snapchat stories of defendants were uploaded to this court case in order to “implement” their Snapchat accounts.[viewed]His approximately 100 Snapchat friends were the ones who shared his stories “regularly by others”. However, the fact that defendant shared his Snapchat stories with others isn’t determinative. We have confirmed that people do not have an expectation of privacy with certain records they freely give to third parties. See, for example, Smith v. Maryland; 442 U.S.735, 742-743 (1979). (telephone call logs transmitted to the telephone company); United States v. Miller; 425 U.S. 435, 444 (1976) (bank documents provided to bank employees); Commonwealth v. Vinnie, 428 Mass. 161, 178, cert. denied, 525 U.S. 1007 (1998) (telephone billing records transmitted to the telephone company); Commonwealth v. Cote, 407 Mass. 827,835-836 (1990), (telephone answering system message records), but we declined to expand this reasoning to other circumstances. Commonwealth v. Augustine, 467 Mass. 230, 251 (2014), S.C., 470 Mass. 837 Mass. and 472 Mass. 448 (2015). Cell phone users have a reasonable expectation of privacy regarding cell site information [CSLI]Because such information is not “substantively different to the types and records contemplated or disclosed by cell phone companies”, it was sent to them. SmithAnd Miller“). The Constitution protects conversational and group privacy. Smith, supraAnd Miller, supraAlso, Vinnie, supraAnd Cote, supraThey are also categorically distinct from conversations on social media in a constitutionally important way.

While we recognize the fact that the majority of social media privacy cases have been considered by courts, they have relied on the third-party doctrine to resolve the problem. We have also concluded that once content has been posted to social media there is no expectation of privacy. While we continue to believe that the third-party doctrine does not provide a basis for a rule that people cannot expect privacy from third parties, it is no longer applicable in the digital age where individuals are able to reveal vast amounts of personal data to other parties while carrying out routine tasks. Compare Chavez, 423 F. Supp. 3d 194 (W.D.N.C. 2019 The Fourth Amendment protects Defendant’s right to privacy. However, sharing content on social media with other people does not necessarily diminish an individual’s privacy rights.

The defendant in this case had an inflated privacy interest, but it was not diminished by his stated policy to restrict such access. He did not “control” the situation.[ ]His Snapchat account. He appears to have allowed unknown people access to his content. Connolly had access to the defendant’s content with a nondescript username the defendant could not identify and an image as a default that was clearly not Connolly’s. Connolly accepted the friend request under those conditions, proving that the defendant did not “reasonable attempts to verify the claims” of those who sought access to his account.

The defendant’s privacy rights were further reduced when the undercover officer was able to see virtually every Snapchat post of him. Other than that, “a wrongdoer” has no remedy under the Constitution. [mistaken]Belief that someone to whom he confides his wrongdoings is a government agent.

{We do not believe that an individual receiving a friend request unknowingly from an undercover police officer should lose any expectation of privacy regarding the content on Snapchat. It is possible that the outcome might have been different if a police officer gained access to an account by pretending to be close friends or family members. 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.} …

Because Connolly obtained his permission through a scam, the defendant claims that this “permission” shouldn’t be taken as valid. However, Connolly’s refusal to reveal his identity to defendant does not negate the permission granted to him by the defendant. To hold the defendant responsible for his actions, Connolly would have to identify himself to police officers. [such]When they investigate criminal activities,” thus making “virtually any undercover work” inconstitutional. This we decline to do….