Privacy Law

Can undercover cops use Snapchat content for prosecution? It depends, top state court rules

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The top state court in Massachusetts on Monday ruled against a Snapchat user who was prosecuted after posting a gun video seen by a "friend" who turned out to be an undercover police officer.

The Massachusetts Supreme Judicial Court said Averyk Carrasquillo, a felon banned from possessing guns, did not have a reasonable expectation of privacy in the content, and there was no constitutional violation when the video was used against him.

Courthouse News Service and the Volokh Conspiracy have coverage of the Feb. 7 decision.

Prosecutors had argued in favor of the prevailing view: that posting any content to a social media account automatically eliminates any reasonable expectation of privacy. Carrasquillo had argued, on the other hand, that he had a per se expectation of privacy because his account was designated “private”—which allowed only friends to see his stories.

The court rejected any bright-line rule, however, saying each case must be evaluated based on the totality of the circumstances.

The Boston police officer had sent a friend request to Carrasquillo using a pseudonym and a default picture assigned by Snapchat. Carrasquillo also used a pseudonym, “Frio Fresh,” for his account, but the officer later recognized him by his photos.

After Frio Fresh accepted the friend request, the officer was able to see Carrasquillo’s content designated as “stories” for up to 24 hours.

Carrasquillo posted a video in stories that showed an individual from the chest down displaying what appeared to be a silver revolver. He was wearing distinctive clothing. Another story showed Carrasquillo in a weightlifting gym. Officers outside the gym saw Carrasquillo wearing the same distinctive clothing. They made an arrest and recovered a revolver from Carrasquillo’s pocket.

In this case, Carrasquillo was unaware of his privacy settings. and his stories were routinely visible to his approximately 100 Snapchat friends. He also demonstrated that he did not control access to his account when he granted the officer’s friend request, the court said.

The fact that the officer did not reveal his true identity doesn’t vitiate the permission to access Carrasquillo’s account, the court said.

“To hold otherwise would require police officers to ‘identify themselves as [such] when they investigate criminal activity,’ thus rendering ‘virtually all undercover work’ unconstitutional,” the court said, citing a federal appeals court decision. “This we decline to do.”

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