MA: No REP in privacy settings on social media when def let undercover officer in

An officer sending defendant a SnapChat “friend” request which defendant accepted created no reasonable expectation of privacy in his SnapChat account. Thereafter, defendant posted a video of him with a firearm, and police looked for him and arrested him for firearms offenses. The court recognizes some privacy, but it is not absolute. Commonwealth v. Carrasquillo, 2022 Mass. LEXIS 51 (Feb. 7, 2022):

In this case we confront the novel question whether the defendant had a constitutionally protected expectation of privacy in social media content that he shared, albeit unknowingly, with an undercover police officer.

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.

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. 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 bright-line rules. Rather, as with other questions of a reasonable expectation of privacy, each case must be resolved by carefully considering the totality of the circumstances, bearing in mind the privacy interests that the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights were designed to protect.

In the circumstances here, we conclude that the defendant did not have a reasonable expectation of privacy in the content that he shared with the undercover officer, and thus that no search in the constitutional sense occurred. Accordingly, we affirm the denial of the defendant’s motion to suppress.

. . .

We recognize that a majority of courts to have considered the issue of the expectation of privacy in social media content have relied exclusively upon the third-party doctrine, and have concluded that, as the Commonwealth argues, once any content is posted on social media, no reasonable expectation of privacy remains. We continue to be of the view, however, that a categorical rule that individuals do not maintain a reasonable expectation of privacy in information provided to third parties through electronic sources 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” (citation omitted). See Augustine, 467 Mass. at 252 n.35, quoting Jones, 565 U.S. at 417 (Sotomayor, J., concurring). Compare Chavez, 423 F. Supp. at 205 (“In sum, Defendant manifested a subjective expectation of privacy in his non-public Facebook content that society is prepared to recognize as reasonable. As such, Defendant’s legitimate expectation of privacy is protected by the Fourth Amendment”). Consequently, although an individual’s choice to share social media content with others diminishes the individual’s privacy interests, it does not per se defeat them. See Carpenter v. United States, 138 S. Ct. 2206, 2219 (2018), quoting Riley v. California, 573 U.S. 373, 392 (2014) (“the fact of ‘diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely'”). See also Commonwealth v. Feliz, 481 Mass. 689, 701 (2019), S.C., 486 Mass. 510 (2020), citing Carpenter, supra.

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. See Krisco Corp., 421 Mass. at 42. 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. See Commonwealth v. D’Onofrio, 396 Mass. 711, 717 (1986) (no reasonable expectation of privacy in club open only to members and guests where owners did not “corroborate the claims of guest status made by persons seeking admission to the club”).

Once the possibility of an undercover officer being able to view virtually all of the defendant’s Snapchat content materialized, the defendant’s privacy interest was further diminished. …

[Kudos to defense counsel for making a good record.]