SJC Declines to Adopt Bright Line Rule That There is No Reasonable Expectation of Privacy in Social Media Posts
In Commonwealth v. Carrasquillo, No. SJC-13122 (Feb. 7, 202), the Supreme Judicial Court affirmed the denial of a defendant’s motion to suppress social media content he unknowingly shared with an undercover police officer. The SJC found that on these facts Averyk Carrasquillo did not have a reasonable expectation of privacy in his Snapchat stories. Yet the Court disagreed with most courts to have considered the issue that third-party dissemination of content on social media necessarily removes any reasonable expectation of privacy in that information.
A Boston police officer sent a friend request to a Shapchat account bearing the username “Frio Fresh.” Frio Fresh accepted that request. The Frio Fresh account was set to private, meaning any stories posted to the account were visible only to users connected as friends with that account. Mr. Carrasquillo later acknowledged that Frio Fresh was his Snapchat username.
Police officer Joseph Connolly used a random username and a default profile picture on his undercover account. Office Connolly was familiar with Mr. Carrasquillo and knew he had a criminal history and was prohibited from carrying a firearm. Officer Connolly saw a story posted to the Frio Fresh account depicting an individual in distinctive clothing displaying a revolver. About thirty minutes later he saw another story showing Mr. Carrasquillo inside a gym. Police conducted surveillance of the gym and found Mr. Carrasquillo wearing the same distinctive clothing. Police recovered a revolver from Mr. Carrasquillo’s pants pocket.
The Superior Court denied Mr. Carrasquillo’s motion to suppress the video recordings from the Frio Fresh account. The trial court found that Mr. Carrasquillo had not shown that he had a subjective expectation of privacy in the video recordings and, even if he had, that such an expectation would not have been reasonable. Mr. Carrasquillo entered a conditional plea to possession of a firearm without a license, as a subsequent offender, and carrying a loaded firearm without a license. The SJC affirmed.
First, the Court found that Mr. Carrasquillo did not have a subjective expectation of privacy in his Snapchat account. In doing so, the SJC accepted the trial court’s finding that Mr. Carrasquillo was unaware of the privacy settings on his account. Additionally, Mr. Carrasquillo testified that he only accepted friend requests from people he knew. But that testimony conflicted with Officer Connolly’s testimony that he had sent a friend request with a randomly generated username, which Mr. Carrasquillo then accepted. The SJC distinguished this case from United States v. Chavez, 423 F. Supp. 3d 194, 203-05 (W.D.N.Y. 2019), in which the United States District Court for the Western District of North Carolina found there was a reasonable expectation of privacy in a social media account when the defendant knew that his account was private and took care to limit the public’s access to that account.
Next, the SJC found that here Mr. Carrasquillo did not have an objective expectation of privacy in his Snapchat stories. The Court did find that he had implemented some protective measures. Mr. Carrasquillo was using a pseudonym, friends had to be added deliberately to the account, and Snapchat stories are ephemeral because they are automatically deleted after one day. Thus, Snapchat stories are unlike text messages, in which the sender enjoys no reasonable expectation of privacy that would prevent police recovery of those messages from the recipient’s phone. See Commonwealth v. Delgado-Rivera, 487 Mass. 551, 560, 564 (2021). Compared to text messages, a Snapchat user maintains more control over his posts and Snapchat content is not as easily disbursable by recipients. The SJC therefore declined to adopt the majority view that the third-party doctrine removes any reasonable expectation of privacy in social media posts.
But Mr. Carrasquillo’s protective measures were not enough to give him a reasonable expectation of privacy in his Snapchat posts. Even though he employed some protective measures, he did not adequately control access to the account. In particular, the SJC focused on Mr. Carrasquillo’s decision to accept a friend request from an unknown account, which turned out to be controlled by police.
Finally, the nature of the government intrusion also weighed against a finding that Mr. Carrasquillo had a reasonable expectation of privacy in the videos at issue. The SJC emphasized that the government’s intrusion took place with Mr. Carrasquillo’s permission. Unlike metadata – which is often collected without the user’s involvement or even knowledge – the videos collected by Officer Connolly were the precise content Mr. Carrasquillo posted for his Snapchat friends to see.
Carrasquillo will embolden law enforcement to increase its surveillance of targeted communities through anonymous social media accounts. That tactic is troubling in an era when people increasingly rely on social media for social and political discourse. But there is a glimmer of hope that individuals in Massachusetts can shield their social media communications from government intrusion provided they are diligent about adopting available privacy protections.