Massachusetts Court Says No Expectation Of Privacy In Social Media Posts Unwittingly Shared With An Undercover Cop

from the going-to-need-to-have-a-deeper-discussion-about-expectations dept

Can cops pretend to be real people on social media to catfish people into criminal charges? Social media services say no. Facebook in particular has stressed — on more than one occasion — that it’s “real name” policy applies just as much to cops as it does to regular people.

Law enforcement believes terms of service don’t apply to investigators and actively encourages officers to create fake accounts to go sniffing around for crime. That’s where the Fourth Amendment comes into play. It’s one thing to passively access public posts from public accounts. It’s quite another when investigators decide the only way to obtain evidence to support search or arrest warrants involves “friending” someone whose posts aren’t visible to the general public.

What’s public is public and the third party doctrine definitely applies: users are aware their public posts are visible to anyone using the service. But those who use some privacy settings are asking courts whether it’s ok for cops to engage in warrantless surveillance of their posts just because they made the mistake of allowing a fake account into their inner circle.

Accepting a friend request is an affirmative act. And that plays a big part in court decisions finding in favor of law enforcement agencies. Getting duped isn’t necessarily a constitutional violation. And it’s difficult to claim you’ve been unlawfully surveilled by fake accounts run by cops. You know, due diligence and all that. It apparently makes no difference to courts that cops violated platforms’ terms of service or engaged in subterfuge to engage in fishing expeditions for culpatory evidence.

Massachusetts’ top court has been asked to settle this. And the state justices seem somewhat skeptical that current law (including the state’s constitution) allows for extended surveillance via fake social media accounts. No decision has been reached yet, but lower courts in the state are adding to case law, providing additional precedent that may influence the final decision from the state’s Supreme Court.

This recent decision [PDF] by a Massachusetts Superior Court indicates the courts are willing to give cops leeway considering the ostensibly-public nature of social media use. But it doesn’t give the Commonwealth quite as much leeway as it would like.

Here’s how it started:

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.

Here’s how it’s going:

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.

The competing arguments about expectation are (from the defendant) “some” and (from the Commonwealth) “none.” It’s not that simple, says the court.

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 brightline rules.

In this case, Boston police officer Joseph Connolly created a fake Snapchat account and sent a friend request to a private account run by “Frio Fresh.” Fresh accepted the friend request, allowing the officer access to all content posted. In May 2017, Officer Connolly saw a “story” posted by “Frio Fresh” that showed him carrying a silver revolver. Connolly recorded this and passed the information on to a BPD strike force after having observed (but not recorded) a second “story” showing “Frio Fresh” in a gym. The strike force began surveilling the gym and soon saw “Frio Fresh” wearing the same clothes observed in the first story (the one the officer was able to record with a second device). Strike force members pursued “Frio Fresh” and searched him, recovering the revolver seen in the Snapchat story.

The court recognizes the damage free-roaming surveillance of social media can do to constitutional rights, as well as people’s generally accepted right to converse freely among friends.

Government surveillance of social media, for instance, implicates conversational and associational privacy because of the increasingly important role that social media plays in human connection and interaction in the Commonwealth and around the world. For many, social media is an indispensable feature of social life through which they develop and nourish deeply personal and meaningful relationships. For better or worse, the momentous joys, profound sorrows, and minutiae of everyday life that previously would have been discussed with friends in the privacy of each others’ homes now generally are shared electronically using social media connections. Government surveillance of this activity therefore risks chilling the conversational and associational privacy rights that the Fourth Amendment and art. 14 seek to protect.

Despite this acknowledgment, the court rules against the defendant, in essence saying it was his own fault for not vetting his “friends” more thoroughly. The defendant seemed unclear as to Snapchat privacy settings and, in this case, willingly accepted a friend request from someone he didn’t know who used a Snapchat-supplied image in his profile. In essence, the court is saying either you care about your privacy or you don’t. And, in this case, the objective expectation of privacy is undercut by the subjective expectation of privacy this user created by being less than thorough in his vetting of friend requests.

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. See id. 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.


Indeed, Connolly was able to view the defendant’s stories precisely because the defendant gave him the necessary permissions to do so. That the defendant not only did not exercise control to exclude a user whose name he did not recognize, but also affirmatively gave Connolly the required permissions to view posted content, weighs against a conclusion that the defendant retained a reasonable expectation of privacy in his Snapchat stories.

The final conclusion is that this form of surveillance — apparently without a warrant — is acceptable because the surveilled user didn’t take more steps to protect his posts from government surveillance. There’s no discussion about the “reasonableness” of officers creating fake accounts to gain access to private posts without reasonable suspicion of criminal activity. Instead, the court merely states that “undercover police work” is “legitimate,” and therefore not subjected to the same judicial rigor as the claims of someone who was duped into revealing the details of their life to an undercover cop.

The defendant may get another chance to appeal this decision if the state’s Supreme Court decides creating fake accounts to trawl for criminal activity falls outside the boundaries of the Constitution. Until then, the only bright line is don’t accept friend requests from people you don’t know. But that’s still problematic, considering there’s no corresponding restriction on government activities, which may lead to officers impersonating people from targets’ social circles to gain access to private posts. And when that happens, what recourse will defendants have? The court says it’s on defendants to protect their privacy no matter how many lies law enforcement officers tell. That shifts too much power to the government and places the evidentiary burden solely on people who expect their online conversations to be free of government surveillance.

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Comments on “Massachusetts Court Says No Expectation Of Privacy In Social Media Posts Unwittingly Shared With An Undercover Cop”

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cattress (profile) says:

Re: Rights vs Bears

No expects a bear to respect rights, because it’s a bear. Cops are people, and should not be excused as if they are bears incapable of understanding how to respect rights.
A more apt analogy would be a bear dresses up like a valet, offers to park your car. You say ok, don’t notice that this burly valet has no name tag. Even though the bear had no reason to think, nor did it smell a ham, but looked through your trunk anyway, found it in a cooler and ate it. Later in court, the judge says too bad for you, you should have asked for a name tag, since your in bear country.
Also, it’s plausible to me that Mr.Fresh might have thought the stock photo the cop used looked familiar, because he had seen it before, and assumed it was someone he knew. It’s hard to make assumptions on how likely Frio could have determined that the profile was fake. Like did the cop get some of his friends to also accept requests, did he engage with similar content, have connections to local businesses or interest groups? At what point would this judge think Frio had sufficiently considered this friend request worthy of accepting?
It’s bullshit that this so called undercover investigation is being treated like it is legitimate. What suspicion did he have to make any contact with Frio, or anyone else he’s made friends with, versus anyone he hasn’t made friends with? How can that be a productive use of time?

This comment has been deemed insightful by the community.
BernardoVerda (profile) says:

I would have thought this was (legally) straight-forward...

But IANAL, so I’ll ask:

How would this case differ from a cop getting himself invited to (for example) a private poker game or backyard BBQ, without disclosing that they are a police officer, and under a fake identity?

TKnarr (profile) says:

Re: I would have thought this was (legally) straight-forward...

I think it’d depend on the same conditions as the court laid out in this case: how well did the group vet the newcomer before inviting them? It’s one thing to invite someone you’ve met personally and have known for several years (especially if you establish an understanding that what happens there doesn’t get blabbed about elsewhere), quite another to invite a random stranger who just walked up to you and asked to be invited.

cattress (profile) says:

Re: Re: I would have thought this was (legally) straight-forward

But as personal and professional lived bleed together, what about someone who was looking to establish a business, something highly dependent on social engagement? Like an an influencer (yes I am also rolling my eyes, but some people are pulling in decent money, so who am I to judge?) Or a musician, or matchmaker. Or as someone else mentioned, you might accept friends in order to play social games. In the interest of growing your network, you might not vet everyone because you assume they have a genuine shared interest, since that’s what the platform is for.
And I’m not convinced that the cops excuse of being familiar with defendant through a youth violence strike force, whatever that it, is sufficient reason to suspect Frio has does anything that warrants further investigation by any means. I’m all in favor of innovative ways to interrupt the cycle of violence, but this is definitely not it.

Anonymous Coward says:

It would be different if the cop had posed as an actual friend. But in this case, he just posed as a random person. If you’re accepting friend requests from random people, I think you run the risk that those people may be cops.

On the other hand, I may have accepted friend requests from a few random people back in the days where I played facebook games. It would certainly be disconcerting to find out that one of those was secretly a cop who had been surveilling me for years. I’d probably worry about it more if I actually ever posted anything on facebook.

Anonymous Coward says:

This can (and will) be fixed outside of the court system

People (Possibly anti-cop gang members) will now set up fake accounts to loure Law enforcement in to misschievous behavior, exposure or more dangerous situations.

It’s been done before, now cops have just given a bad actors another avenue to set others up. This will briefly become the new swatting.

If police are violating a platforms TOS, and they admit it in court, aren’t they opening themselves up to a lawsuit from the platform?

This type of misuse degrades the platforms "Reputation" and could cause financial harm to the platform by driving away users and the ad revenue that goes along with it.

Rich says:


If you invite, accept, or allow an unknown person to a private space, you have relinquished control of the privacy of that space.

What difference does it make if that space is your car, living room, bedroom, or social media page hosted by a company whose entire business model is based on violating your privacy and selling your personal information? If there is plainly viewable evidence of a crime committed, be it a signed and dated poster, tv playing a video, a gun hanging out of your pants, or a video that ever so conveniently documents your illegal shenanigans that you posted online for some reason, how can you possibly say with a straight face that you think your privacy has been violated?

To reiterate, yet again, never put anything online that you don’t want everyone to see. "Privacy" controls are often naught but an abominable cross-breeding of dishonest sales gimmicks, well-intentioned incompetence, misleading check boxes, and unbounded corporate ambivalence.

Anonymous Coward says:

Re: If I understand you correctly...

If I move to another neighborhood, a friendly neighbor invites me to their house in the first week, and I copy the data on their computer onto my USB drive, then

how can [my neighbor] possibly say with a straight face that [my neighbor’s] privacy has been violated?

My neighbor would have a good point.

What difference does it make if that space is your car, living room, bedroom, or social media page?

You’re absolutely right about this one part, but the rest of what you said is backward. Since the Fourth Amendment has long protected the privacy that people have in their physical homes with respect to law enforcement, then it should also protect privacy online.
Too many people today say that there should be no privacy because there already is no privacy on the internet. You seem to be one of them.

Lostinlodos (profile) says:

Multiple issues here!

First is the idea of a “sting” operation; commonly considered legal if the cop never lies and says outright they are not police/LE etc.
the act of lying about it has been hit and miss in fault/legality. And I do not consider it legal to deny. Personally

See, if you walk up to a guy on a street corner and ask to buy crack…!
If the dealer happens to be a cop? Well, you get arrested. For purchase and possession.
If you ask the guy if he’s a cop first, things are more complicated.

But more importantly I want to hit on something in the end of the article.

…which may lead to officers impersonating people from targets’ social circles…

That would be criminal at any level. That’s identity theft.
It’s one thing to fake a profile. It’s another to act as an existing person.

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