Massachusetts Supreme Court Being Asked To Decide Whether Cops Can Engage In Warrantless Surveillance Of Social Media Users

from the cops:-we-of-course-we-can-because-no-one-has-told-us-we-can't dept

The top court in Massachusetts is asking itself (and legal counsel representing both sides) questions that — on the surface level — don’t really appear to be that difficult to answer. Here’s how Thomas Harrison sums it up for Courthouse News:

The Massachusetts Supreme Judicial Court struggled Wednesday to figure out whether police can use trickery to conduct unlimited surveillance of social media accounts even if they have no reason to think that anyone did anything wrong.

I mean, phrased that way, it seems like this should be a “no.” Should the government be able to surveill people suspected of nothing? What else could the answer be in this particular nation with this particular Constitution? And yet, the discussion continues because it’s not quite as simple as that.

The government, however, sees this supposedly easy question and says “Yes.” The government seems to think it’s just that simple, even when it’s pointed out that it’s not quite that simple.

“The breadth of this is what is worrisome,” Justice Scott Kafker complained to Boston-area prosecutor Ian MacLean. “I get that cops are doing this to detect kiddie porn, but you’re saying they can just go out on social media exploring. You may be right, but it’s concerning that they can just go through people’s social media and go hunting. You’re saying they can do that, right?”

“Yes,” said MacLean, an assistant district attorney for Suffolk County. “In the same way cops can approach random people on a street corner.”

Yes. Cops can approach random people. A cop can walk up to anyone and start asking questions. No one’s obliged to stick around but it’s true cops can just hassle people without violating the Constitution. If they want to really dig into their doings, they need more. And comparing approaching random people to peering through their online lives is an analogy that only works if you also believe cops can rifle through whatever mail that random person might be carrying or page through their address book to see who they know and spend time with. And yes, those comparisons are as outdated as this simplistic attempt to turn long-term eavesdropping on social media into something as harmless as idle queries from cops who apparently have nothing better to do.

Here’s what was actually happening, as described in an amicus brief [PDF] filed by the Massachusetts Association of Criminal Defense Lawyers.

The Boston Police Department has created and used an unknown number of accounts on Snapchat, a social media platform, to lure users into accepting their “friend” requests, so that the police can electronically surveil and record private communications sent by those users to their Snapchat friends. The police have done so with no judicial oversight; no probable (or frankly any) cause; and no constraints on what they will surveil or record, or how long their surveillance will last.

So, this isn’t like approaching random people. This is more like an undercover cop hanging out at a house party. Subterfuge is involved, which is generally something necessary in criminal investigations with targeted suspects. And cops apparently believe subterfuge is acceptable, even when doing nothing more than trawling social media services looking for a bite. Courthouse News points to this long-standing belief there’s nothing wrong with refusing to comply with platforms’ terms of use:

A study back in 2014 revealed that 81% of police officers use social media in investigations, and 80% think it’s ethical to create fake accounts to get a suspect to friend them.

In this case, it’s the Boston PD using fake Snapchat accounts to eavesdrop on communications senders likely presumed were private. And officers do it all without training, supervision, or oversight.

Other Boston police officers also use Snapchat as a part of their police work, despite the fact that none have been trained on how to use it. […] There appear to be no policies or even supervision governing these warrantless, suspicionless electronic surveillance efforts by police.

And here’s how that played out in this case:

Before gaining access to the defendant’s “Frio Fresh” private Snapchat account, the police officer did not even know that the account belonged to the defendant. After gaining access to the account — using what the court assumed was a fake name intended to “resonate with the audience he was attempting to try to . . . snoop on,”– the officer was able to use the content of the defendant’s private Snaps, which included an undisclosed number of videos and photographs, to identify the defendant as the account owner. For one month, the officer reviewed the content of every communication sent by the defendant to his private friend network without any judicial supervision and without any limitation on the scope or length of the surveillance or which communications he could record.

And that would seem to be a clear violation of constitutions, both national and local.

Article 14 and the Fourth Amendment preclude the police from unilaterally listening in on private telephone calls, sticking electronic devices on walls or in cars, or generally using new technology to learn what would otherwise be unknowable without the investment of substantial investigative resources. In addition, Articles 1, 10, and 16, and the First, Fifth, and Fourteenth Amendments, protect our fundamental rights as citizens of a free democracy to freely associate and speak together, and enjoy due process and the equal protection of our laws — rights that are severely threatened by the police action in this case.

And yet the Supreme Judicial Court thinks it still may be ok for cops to engage in suspicionless, warrantless, long-term surveillance. Its arguments seem to boil down to a definition of privacy that relies heavily on a person’s online popularity. If someone broadcasts a message to enough people, the expectation of privacy dissipates.

Justice Serge Georges objected that “a really big wedding isn’t a public wedding, but if an account owner indiscriminately accepts people and has 1,000, 2000 or 3,000 friends, at what point does it become absurd to say there’s a reasonable expectation of privacy?”

We’ll have to see how this is resolved. The government apparently believes anyone with over 100 followers is fair game, even if investigators don’t have any articulable reason to eavesdrop on these conversations. While there’s little dispute that public posts on social media are fair game, private messages sent to others (even hundreds of others) aren’t visible by those who haven’t been invited to in-group. That may be the distinction that matters. If cops want to go “undercover” to listen in on non-public conversations between social media users, they probably should have something more to justify these activities with than “because we can.”

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Comments on “Massachusetts Supreme Court Being Asked To Decide Whether Cops Can Engage In Warrantless Surveillance Of Social Media Users”

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14 Comments
Anonymoussays:

Not the number of people, but certainly the mode of selection of those people could matter. A group that indiscriminately accepts anyone who cares to ask doesn’t seem very private to me.

On the other hand, why police should WANT to go on unqualified fishing expeditions on random social media users for no reason, on the off chance that after months of wasted time something illegal might happen, is a another question.

Anonymoussays:

another piece of our freedom being taken away! i bet this wont apply to the ones who they should really be watching, like politicians and all their friends, like the heads of Industry and giant companies! there would be so much backlash if that happened and so little financial backing from them, various unions and politicians would wonder what had hit them!! it’s the old story, so much easier to watch people who are doing no wrong, then make up something to charge them with, than to watch those who should be watched and try to work out what the fuck they’re doing to get all the extra bucks and pledges. oh so easy to convict an innocent person in the USA today, but convicting a guilty person takes work, which those being paid to do that dont wanna do!!

genuine targeted individualssays:

Its a program, the info comes from a potentially violent incident too young to be prosecuted for but they use that data with some derogatory remark Leak this info to ”some people” and set you up/compromise you so they can ”ínvestigate’ you” based on this BS, next step is when you have a genuine investigation ” they have got something on you” there is more after that but i wont reveal because its shocking, basically its a framing with fabricated/bogus investigation abuse of interpol to make you look far worse than you are, then they use this organised gangstalking harassment cyberstalking campaign which comes from another set up, basically a warrantless communication intercept or illegal recordings to investigate you based on the çreated false evidence” so in fact ”intelligence sharing’ and ínformation sharing” is often very abusive!

genuine targeted individualssays:

Its a program, the info comes from a potentially violent incident you may have been too young to be prosecuted for but they use that data with some derogatory remark from a psych or social worker, they then Leak this info to ”some people” and have you set you up/compromise, coaching/scripted witness maybe a child so they can ‘pedo you’and ”ínvestigate’ you” based on BS, next step is when you have a genuine investigation soemthing other nothing to do with them now” they have got something on you” if this is the case they go into full swing but i wont reveal because its shocking, basically its a framing with fabricated/bogus investigation with abuse of interpol to make you look far worse than you are, thats when they use their people with these fabricated lies and the organised gangstalking harassment cyberstalking campaign starts and very nasty info is falsified about you, then comes the counterintel and stolen ID, rucksack etc, to frame you with planted false evidence, next comes either a warrantless communication intercept or warranted one based on the fabricated fake intel or illegal recordings to investigate you, we know ”intelligence sharing’ and ínformation sharing” is often abusive!

Anonymoussays:

So, this isn’t like approaching random people. This is more like an undercover cop hanging out at a house party.

Okay… and we just leave the train of thought hanging here? What’s the legality of a cop hanging out at a house party? Would it make a difference if there was an open invitation, or if they came as the guest of an invited person? Does this analogy help us reach any conclusion, or is it also an open legal question?

Anonymoussays:

Justice Serge Georges objected that “a really big wedding isn’t a public wedding, but if an account owner indiscriminately accepts people and has 1,000, 2000 or 3,000 friends, at what point does it become absurd to say there’s a reasonable expectation of privacy?”

Then personally ask one of the 3000 people if there is anything fishy going on.

James Burkhardtsays:

Re: It's a notable exception, you'd think it would be more known

That is a specious argument. The bill of rights doesn’t detail the exceptions to the first amendment, be we generally accept that some limitations in some form should exist, for instance false statements of fact may raise the limitation of defamation.

I hadn’t pegged you as being opposed to judicial review, but that appears to be your position as you have stated things here.

Assuming however that you do respect that judicial review is a thing that can dictate constitutionality in the eyes of the law, we can try to assess in the light of precedent how this plays out. Unfortunately, public and private have several contextual definitions, and determining where the proper line between them is not always simple. This is a long standing concern. The Pruneyard decision effectively addresses the same issue. Where the line between public and private is. In Pruneyard anyone could (and can) walk onto the property and were invited to do so to visit the shopping center. For most people, that defines the non- shop areas as "public". And indeed, peeing on a building could get me charged with public urination, or being drunk could earn me a public drunkenness charge. The initial rulings used this public definition. But the SCOTUS decided that in this context, the question hinges on if the property is considered public, not the fact that the space is generally available to the public.

I think this is a similar fuckup by the lower court. Anyone could join the snapchat, so its publicly available. but you don’t have the right to access it. The big issue here is the officer clearly did not think he would have been shown the content he saw unless he hid his identity. That indicates a lack of public access – there was curation of the audience. The key question is not whether lots of people had access – Pruneyard has more people across their property daily, or at least did at the time of the Pruneyard case. the question is whether the officer could have made plain view observations if he had not been hiding his identity.

It would be well understood that I was trespassing if I chose to hide my identity to gain access to a private space I could not have otherwise. Same with the officer in this case. It is my policy opinion that any undercover surveillance needs approvals, preferably in the form of a warrant. That seems the way the SCOTUS was headed before the recent ideological changes. How it goes now is much harder to determine

James Burkhardtsays:

Re: Re:

I agree with Green AC’s criticism. AS I pointed out above, Pruneyard’s appellate history suggests that mearly being publically accessable does not define an area as public. Being public requires context.

It is a matter of record the officer went undercover in some fashion to surveil this snapchat – a snapchat with his name and photo was not considered "enough".

That is where the privacy violations occur. Undercover surveillance with oversight to ensure there is probable cause? Preferably with warrants? Sure. In the current legal framework that is fine. Undercover surveillance without oversight? Thats a 4th amendment violation.

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