D.N.M.: Def’s subjective expectation of privacy in Chatstep isn’t enough for a REP

Defendant’s subjective expectation that communications on Chatstep were private isn’t enough for a reasonable expectation of privacy. United States v. Rosenschein, 2020 U.S. Dist. LEXIS 211433 (D.N.M. Nov. 12, 2020):

Regardless of the credibility of his asserted subjective beliefs, Rosenschein has not met his burden to show that he had an objectively reasonable expectation of privacy in the images uploaded to a chatroom on Chatstep. The evidence before the Court shows a user like Rosenschein could not know the identities of those with whom he was sharing images on Chatstep. The website was entirely anonymous, required no registration or identification, and merely asked users to select a nickname that could be changed or altered by the user at will. At any time, a user could be communicating with a law enforcement officer investigating crimes against children or the user’s own nextdoor neighbor-there was simply no way to know. Despite these facts, Rosenschein asserts that he expected that his communications would remain private. It strains credulity to think that the law recognizes as private communications made to unknown individuals. As a matter of common sense, the first step one takes in preserving the privacy of a communication is to know the identity of the person with whom one is communicating. The second step is to try to control who has access to the communication. But on Chatstep, users could do neither of these things, as a chat room was essentially a public space that individuals could enter and leave at will. Rosenschein has presented no evidence that the communications at issue in this case took place in a private chatroom, which although it remained anonymous, at least required a password for entry. “Those who bring personal material into public spaces, making no effort to shield that material from public view, cannot reasonably expect their personal materials to remain private.” United States v. Barrows, 481 F.3d 1246, 1249 (10th Cir. 2007). Essentially, Rosenschein confuses anonymity with privacy, but they are not one in the same.

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