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

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 youre saying they can just go out on social media exploring. You may be right, but its concerning that they can just go through peoples social media and go hunting. Youre 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 And yes, those comparisons are as outdated as this simplistic attempt to turn long-term eavesdropping on social media into something as harmless as idle queries from cops who apparently have nothing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 its 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 defendants 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 defendants 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 isnt 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 theres 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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Filed Under: 4th amendment, massachusetts, police, social media, warrantless surveillance

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