Mass Court: Cops Not Required to Identify Themselves on Social
We’ve all seen those police procedurals where a drug dealer, about to make the sale, turns to the customer and says, “You’re not a cop, are you? ‘Cause if you are, you gotta tell me…” Yeah. Right. Clearly, undercover police are not required to tell people that they are undercover police. But in the law of unauthorized access to property, the question of the extent to which cops have to identify themselves to get access to property (and the legality of a search of that property) is a bit murky. I’ll explain shortly.
But first, we’ll start with the fact that on February 7, a Massachusetts appellate court had to apply this law to a defendant’s social media site. Arveryk Carrasquillo had a Snapchat social media account which was set to private by default. As a result, in order for the police to monitor Carrasquillo’s social media posts, they would have to establish probable cause to believe he was committing a crime, obtain a search warrant from a Commonwealth of Massachusetts court, convert this warrant into an order to Snapchat under 18 USC 2703, serve that order to Snapchat’s offices in Santa Monica, California and wait. And wait. And wait.
Instead, Boston Police officer Joe Connolly, who was working with the BPD youth violence strike force, created a fictitious Snapchat account under a random name using a default picture assigned by Snapchat. Using the sock puppet account, officer Connolly sent a friend request to Carrasquillo’s account “Frio Fresh” without identifying himself as a police officer. Carrasquillo accepted the request. Big mistake. Huge.
Because Carrasquillo accepted the request, the cops were able to see otherwise nonpublic information on the account. Connolly knew that Carrasquillo had a prior felony conviction and, therefore, was prohibited from possessing firearms. You know (or at least, you can guess) what happened next: Carrasquillo posted a picture to his non-public Snapchat account of himself holding a silver revolver and of himself working out at a local gym. Cops made the easiest arrest ever; they went to the gym, searched Carrasquillo, found the gun—easy peasy lemon squeezy. Felon in possession. So, were the actions of the BPD, essentially tricking Carrasquillo into surrendering his privacy rights by inviting the unknown doppelganger into his Snapchat, feed lawful?
The Suffolk County prosecutors alleged there was no expectation of privacy in social media at all. Hey, it has the word ‘social’ right in the name! As the court noted, “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.” What that means is that not only could police or prosecutors get access to private social media content based on an “invited ear” theory, but that they could get any content posted on social media—even content posted privately—through any other means, including hacking, seizing it from the social media site without a warrant or order or seizing it from the defendant without a warrant or other order. To say that a private social media posting has no privacy interest is—well, astounding.
Cops Searching Social Media
The Massachusetts court recognized that people have expectations of privacy in their communications and associations and that federal and Massachusetts law protects those privacy interests. The court also recognized that for many, social media is an indispensable feature of social life through which they develop and nourish deeply personal and meaningful relationships and that government intrusion and surveillance of social media implicates associational privacy. The court also ruled that, by viewing Carrasquillo’s social media postings, the police were engaged in a “search” under the Fourth Amendment.
The real question was whether, by inviting the undercover police officer to see what he was posting, Carrasquillo relinquished any expectation of privacy he had to the private portions of the account, or whether those private portions of the account afforded him any reasonable expectation of privacy at all. Carrasquillo testified that he was not aware of what his Snapchat privacy settings were, but there was evidence that the default for Snapchat was for postings to be set to private—well, actually, semi-private—meaning viewable only by friends. The trial court found that Carassquillo did not have a reasonable subjective expectation of privacy in his Snapchats—even if set to private and only shared with his limited set of followers because “[t]he nature of [S]napchat is sharing videos with other people, and even if the defendant only sent it to the people he says were following him, one hundred people by the defendant’s own estimation, that was not . . . a reasonable preservation of his privacy in the video.” As Benjamin Franklin notably observed, “two may keep a secret provided one of them is dead.”
This finding by the trial court is, in my opinion, frankly, wrong. What the trial court says is that, by sharing something with someone, knowing that they might share it with others, you lose your privacy rights applicable to that thing even if they don’t share it with others. If the BPD had received the gun video from a person with whom Carrasqillo had shared it, then—game over. (Well, they did, but that’s for a further discussion.) But to find, as the court did, that the act of sharing with someone means that there’s no privacy right is wrong. However, there is also a game of numbers. Clearly, some things are private. Some are public. And many are in between. If I share some intimate secret with a friend, I run the risk that the friend will reveal it (think Linda Tripp) but it can’t be said that the information is public. If I post something on a public website, it’s public. But what if I say something at an invitation-only meeting of 50 people? What about 500 people? Five thousand, 50,000 people? The line is fuzzy, but, at some point, it would be considered public even if not accessible to every Tom, Dick and Dirty Harry.
The appellate court also found convincing the lower court’s findings that Carrasquillo was unaware of the privacy settings on his Snapchat. Even if Snapchat defaulted to a private setting, Carrasquillo did not know that, and therefore, how could he have a reasonable expectation of privacy in the postings? Sure, if he did something to keep it private or if he knew it was private, then maybe the cops invaded privacy. But by having a privacy setting set to private without your knowledge does not, according to the court, establish a right to privacy.
I respectfully disagree. The truth is, I have expectations of privacy in my Gmail, searches, Apple accounts and other accounts, even if I don’t know their privacy policies or settings. In essence, the court holds that, to have a right to restrict access by the police or others to information that is set to be private, you have to have set it that way yourself, or at least demonstrate that you knew that to be the setting. It’s also inconsistent with the basic principles of privacy law, like default opt-out and notice and minimum use and collection. My things should be considered private unless it can be shown that my actions intended to make them public—not the other way around.
The Mass court also found that Carrasquillo failed to take “ordinary protective measures” to keep the information private. While the court recognized that the nature of Snapchat was to keep posts private and ephemeral (they were designed to be deleted within 24 hours) and that Snapchat recording could not easily be forwarded because of the same restrictions, the court found that his Snapchat stories “were posted so as to be viewed routinely by others”—namely his 100 followers. But the court found that people still retain expectations of privacy in social media and that a rule finding no privacy 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.”
So social media postings to a limited number of people can contain a reasonable expectation of privacy.
The Invited Cop
The court noted that Carrasquillo accepted a friend request from someone he did not know who turned out to be a Boston police officer. The appellate court found that “[b]y 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” and therefore that he did not have a reasonable expectation of privacy in what he made accessible to Connolly. “Here,” the court concluded, “the challenged recordings “effectively [had been]controlled by [the defendant]” and were made accessible to the undercover officer only with the defendant’s “express or implied authorization.” The court concluded that even though the consent by Connolly to access Carrasquillo’s social media was obtained through “a ruse,” this did not obviate the consent since, “to hold otherwise would require police officers to “identify themselves as [such] when they investigate criminal activity,” thus rendering “virtually
all undercover work” unconstitutional.
Here, I give a distinct “maybe.”
Sure, police can go in undercover and are not required to reveal who they are. That’s the nature of police work in general and undercover police work in particular. A cop can show up to a drug deal (or an underage party where alcohol is being served) and not only not reveal that they are a cop but falsely deny it as well. They can use deception to gain access to certain places.
But there are limits. Let’s say the cops show up at your door in uniform and ask if they can come in and search the place. You say, “Not without a warrant.” Fine and dandy. You have a Fourth Amendment expectation of privacy and the warrantless search would be unlawful. Cops come back and say, “Hey, we got a report of a gas leak here. It’s dangerous and we need to come in to make sure it’s safe.” You consent, and in the course of searching for the gas leak, they find your stash. They used a ruse to get access, but probably not legal. Now the cops use the same ruse, but they are dressed in Con Ed uniforms—using a ruse to get access to something that you wouldn’t have given them access to if you knew they were cops. Or, you’re hosting a Super Bowl party and a guy shows up and says, “I’m a friend of Jimmy’s,” when they’re really an undercover cop investigating whether you are unlawfully taking bets from friends for the Rams. While the court looked at the question of whether the undercover cop was “lawfully present” in the place where he conducted the search (the defendant’s Snapchat feed), the undercover Con Ed cop is similarly “lawfully present” in your house looking for gas leaks.
Issues of Privacy
A more defensible approach would have been for the court to focus on the fact that the Boston cop was posing as some regular member of the public without falsely assuming someone’s identity of trust. The fact that the defendant let that guy in meant that he really didn’t expect what he did to be all that private. In other words, it’s not that the cops can use any ruse, it’s just that this ruse exposed the fact that the defendant was willing to share with anyone—and that meant that he had no expectation of privacy with respect to what he actually shared with Connolly, even if he didn’t know Connolly was a cop.
Courts will continue to struggle with the issue of the privacy of social media posts, and will likely err both ways. Just some advice. If you’re a convicted felon, don’t flash pictures of yourself with a gun on Snapchat. Or better yet, don’t have a gun in the first place. That advice was free. Anything else … I’ll need a retainer.
