“Friending” by Undercover Police Officer

Much has been written about “friending,” especially deceptive friending or friending of represented parties, in the civil litigation context. For example, under Philadelphia Bar Association Professional Guidance Committee Opin. 2009-02 (Mar. 2009), an attorney or those supervised by the attorney may not use deceptive conduct to access an unrepresented person’s social media site: “Deception is deception, regardless of the victim’s wariness in her interactions on the internet and susceptibility to being deceived. The fact that access to the pages may readily be obtained by others who either are or are not deceiving the witness, and that the witness is perhaps insufficiently wary of deceit by unknown internet users, does not mean that deception at the direction of the inquirer is ethical.”

A recent criminal case confronted “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.”  Commonwealth v. Carrasquillo, 489 Mass. 107, 179 N.E.3d 1104 (Feb. 7, 2022).

The officer used an undercover account to friend “Frio Fresh” on Snapchat. The officer’s account used Snapchat’s default profile photo. After the officer friended the defendant, the defendant published a video to social media.  The video showed the torso of someone holding a firearm and the officer recorded it.   The officer viewed several videos and concluded that “Frio Fresh” was someone that he knew was prohibited from carrying a firearm. After other events and some corroborating facts, the defendant was arrested with a firearm.

The video was admitted into evidence against the defendant. The arguments were simple.  The defendant argued that he had an objectively reasonable expectation of privacy because the page was “private.”  The Commonwealth replied that posting undermines privacy.

After explaining the features of Snapchat, the Massachusetts court declined to accept either position and rejected a bright-line rule.[1]  Instead, it applied a totality of the circumstances test.

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.

Two factual findings appeared to be key. First, the trial judge found that the defendant “was unaware of his privacy settings.” Therefore, he lacked a subjective expectation of privacy. Second, his objective expectation was diminished because “he appears to have permitted unknown individuals to gain access to his content.” For example, the undercover officer “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 [the officer’s] photograph. By accepting [the officer’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.” The court wrote:

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.

The court saw no constitutional remedy for a wrongdoer’s erroneous belief that the person he confided in was not a government agent.  Here, however, the “government intrusion took place with the defendant’s permission.”

The court rejected defendant’s final argument that he had been tricked:

The defendant maintains that his “permission” should not be considered valid, given that it was obtained via a ruse. That [the officer] did not reveal his true identity to the defendant, however, does not vitiate the permission the defendant extended to him.

However, it qualified its holding: “If, for example, a police officer had gained access to an individual’s account by masquerading as a close friend or family member, the result might be different.”

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[1] The Court wrote that it did “not wish to ‘embarrass the future’ by adopting bright-line rules or drawing analogies that might prove ill fitting for the technology of tomorrow.”