-: SJC-13122, Commonwealth V. Averyk Carrasquillo.
-: Okay, attorney run out.
-: Thank you, your Honors.
Can you hear me?
-: [Justice Wendlandt] Yes.
-: Thank you, Suzanne Renaud for Averyk Carrasquillo.
-: [Justice Wendlandt] Yeah, actually,
just a little bit louder.
Justice Gaziano: Much louder.
-: Your Honors, this case came before the Lower Court
as an issue of consent.
But obviously the predicate question
is whether there's privacy attaching to social media.
And it's a newish technology,
the judge below the approach would basically say that nobody
who is operating in a social atmosphere
would ever be entitled to
any kind of expectation of privacy.
I think there's a better approach to that.
What these social media companies have in common
is irrespective of their terms of service,
or if they're like Snapchat which is a femoral
and needs to have a lot of notifications based on video
and it's a little bit more akin to oral communications,
or it's more traditional like Facebook,
is that they divide themselves
into two different kind of categories, public and private.
And those, those words have meaning to the users.
The users look at that, if it's public,
it means that the posts that they put
are available to anybody to see.
-: But counsel, I understand
the conceptual argument you're making,
but isn't their testimony that the defendant in this case
really didn't pay too much attention to his public
or private, or at least he didn't get it right,
because he admitted a friend that wasn't really his friend,
he didn't know him, and he really didn't know
what his settings were.
-: Well, your Honor, that is a factual question.
I think I'm,
I was just wanting to frame the issue initially,
but the point that is made there,
whether or not he knew this person was a friend,
let's put it this way.
If you were having a house party
and you were letting people in
and you invited 10 people,
and one of your friends brought a friend.
All you have to do is say,
"can that person come in or can they not come in?"
You don't have to scrutinize their bonafides.
It's not the job -
-: Now suppose that friend is an undercover cop
and sees something illegal at your house.
-: Well, your Honor, that's an issue of consent.
The question is there,
you have the right to say that your home is private,
and if you've consented,
if it's legitimate consent to the police officer coming in,
that's a question of the consent.
-: Wait, you don't know he's the police, he's undercover.
-: Well, that's a ruse and ruse,
the question of ruses always indicate the issue of consent.
-: A police officer undercover can not go into
another's home without consent,
knowing that they're undercover?
-: Your Honor, that's essentially what a ruse is.
It's saying that you have consented
to let that person in to see the,
usually it has to do with some kind of criminality
that you're engaged in, but that is absolutely the case.
It's that when you're dealing with the ruse,
it's a second level question,
you already have that expectation of privacy
surrounding you, they have to get consent.
Now they can use trickery,
they can't go over the line to coercion,
but they can use trickery to gain that consent.
But that is a second question that is comes after
the question of whether or not you had an expectation
of privacy in that area to begin with.
And so with -
-: [Justice Wendlandt] Does that apply outside the home?
-: I'm sorry?
-: Have you found cases where that's applied
outside the home?
Here we're talking about a social media electronic platform,
and you're saying that that space is like a calm
and I'm wondering if there's any support
for that proposition given the way
that the home is so unique for search and seizure cases.
-: Well, I can think of two cases that both
the Commonwealth and I cite, I think we both cite them.
The Hinds case and the Kaupp case,
both of those have to do with computer networks.
They're not social media networks.
So they obviously are different in kind, but in both cases,
the police received consent from one of the authorized users
to be able to get into that network.
So even though the information was being shared
among a network of people and in the Kaupp case,
it was an entire school, they were able,
they had to get the consent to come in.
So yes, it would apply that same principle would apply
even outside of the home.
If I was having a private party at a hotel,
that would also apply.
If I was sending, you know,
if I was sending an email to 50 people,
because it was a Christmas letter,
the police can't get into it
just because I sent it to other people.
So that's not a case, it's just an example,
but there are certainly cases out there that say
that consent is necessary
even when something is being shared.
Did that answer your question, your Honor?
-: [Justice Wendlandt] I think it did, yeah.
-: Ms. Renaud, you gave us an attractive option
to basically rule based on private or public settings,
which would be easy to apply.
But when you wrote your brief,
you didn't have the benefit of Delgado-Rivera.
Suzanne Renaud: That is true, your Honor.
-: Okay, so we go to Delgado-Rivera and we look at that case,
in the text message in that case certainly was private.
So your private/public kind of falls apart,
but what doesn't fall apart
is the discussion in footnote seven
about ephemeral messaging and expectation privacy.
So can you reframe your argument or give me an argument
regarding footnote seven and why that applies in this case?
-: About whether it's a ephemeral?
Well, I would say your Honor, the question -
-: Of why there's a reasonable expectation of privacy
in light of what we wrote in Delgado-Rivera.
-: Well, I, I certainly will.
And the issue in Delgado-Rivera
and it's one that was identified by the Commonwealth
and the DC Circuit Case that they,
that they cited in other cases that you say, well,
there's no expectation of privacy in this thing
that they lost control over.
But I would say that your Honors,
that logic is actually just kind of shorthand
for a greater picture context that you've provided
because in, if you give me just a moment,
on page 15621 in Delgado-Rivera,
you don't just talk about that, in a vacuum.
You say that,
that there is a risk that the confidant will reveal
the information that frustrated
the original expectation of privacy.
Making something that was once private
now into something that was public.
When you frame the issue on page 559,
you said this was the issue of the sent text message
being captured by, by the police officer.
So the issue there, isn't just, you know,
when you're talking about this third party consent
or assumption of the risk question,
you're not simply talking about it just, oh,
you just don't have any expectation of privacy period,
that's never how we framed the law.
If you were to frame the law that way,
we wouldn't have any expectation of privacy
in anything that we ever said.
And so what you are actually talking about is that
the police can go to a friend
and see if they'll quote, unquote,
"rat out" the person in question,
or they'll get, they can get a search warrant for a friend
and get the question,
but it is not hypothetical
or theoretical that that will happen.
It's something that has actually happened.
So in that sense,
I don't think Delgado-Rivera changes the situation,
the expectation of privacies at all.
In any of this, it is not material,
whether that you share with 50 people,
100, 1,000 people within your social network,
because unless the police actually get the item
from that person, that principle of assumption,
the risk simply does not apply.
And that is the case here, I'm sorry.
-: Here are the police tried to capture the Snapchat
and they couldn't.
-: Well, your Honor, this is that,
that issue about the police actually trying to
capture the Snapchat came after
they purported to get consent.
But the question that the way the Commonwealth
and the judge below framed it
is that they didn't even have to get to the point
of asking for consent because there was never
an expectation of privacy.
-: Right, so I mean, your case might fall into
footnote seven of Delgado-Rivera.
I guess the bigger issue that you have as far as
the judge's findings are her first findings
regarding no subjective expectation of privacy.
Is that supported by the evidence,
or why is that clearly erroneous?
-: Well, your Honor,
I would say there are two things about that.
First, the way I wanted to make sure to frame social network
and I just want to get this out there,
is that social networks,
when you were talking about private ones,
is that there's a circle
and there's conversation inside of that.
And that the defendant is, or the user is the gatekeeper,
Justice Gaziano: It's like the circle of trust,
Suzanne Renaud: Essentially, yes.
-: To quote Robert De Niro but go on.
-: Says we're supposed to be able to share with others,
groups of people and be able to keep the government out
and objectively.
So we have that sense of it meets the legal definition
and objectively here,
not even based on Mr. Carrasquillo's testimony,
but based on Officer Connolly's testimony,
and that's why I'm trying to bring it back,
from that for a moment.
He said that "I saw 'Frio Fresh' existed,
but I couldn't see any of the content,
I made a friend request."
He said something happened, which we know from common sense,
and from Snapchat's terms of services
that the user actually has to be the gatekeeper
and let him in, and then "I could see everything."
So on the day he was seeking consent,
we objectively had a private account.
This court in Commonwealth vs. Mora
suggests that you can extrapolate,
even without much else on the record,
that somebody who has an objectively
objective expectation of privacy would also have
a subjective expectation of privacy in part,
because it's based on their conduct,
if their conduct shows that they had a private account
on that day, why wouldn't they -
-: Counsel, well, can I interrupt you with one,
one question on that?
So when we're looking at the expectation of privacy
and you say, okay, if you walk, talk and act
like you want this to be private,
how does that square with just accepting friend requests
from folks that you just don't know?
So when you're talking about marrying the two concepts,
and now there's another point to that.
I know somewhere in somebody's brief,
they talked about the fact that you could have
a really big wedding
and it wouldn't convert into a public wedding.
But by extension, if you have an account owner,
who's just indiscriminately accepting folks
into this circle of trust,
and now it's 1,000, 2,000, 3,000.
At what point does it become absurd
that you say that you have a circle
or an expectation of privacy
in what you're sharing with these folks
when you don't, when you don't legislate who comes in
because you're letting in people you don't really know.
And it could arguably grow to a point
of just an inordinate amount of people
that are in this private setting?
-: So, what I would say to that, your Honor,
is where do you set the lines?
That would be a problem,
a legal problem of where is that line going to be set?
Is it 50, 100, 500, what number is too many?
-: Well, let's start with the first question
about just indiscriminately allowing people into that pool.
-: Well, I would say to that, your Honor,
if it is a private account, and if Blood says that,
the point is that you're supposed to be able to keep
the government out, if it's not indiscriminate.
I mean, in this case,
we do have at least some evidence
and I'm going back to Justice Gaziano's question of,
you know, did he say that, you know,
he didn't let the police?
He said he didn't let the police in.
It's not completely indiscriminate if you,
the whole point is to say, oh,
we're just not going to get, let the police in.
And this is an undercover officer,
who didn't identify himself as a police officer.
If that was the case,
when you have 50 or 100 or 500 friends,
that's the only point
of factual information that I think
that you would need to know,
because otherwise it's not the court's job
to be scrutinizing how well we know all of these people.
-: It may not, but this is important here.
Let's just presume for the sake of the argument
that what you're doing or you're posting,
you know is illegal, like taking videos of flashing guns,
that you don't have a lawful right to possess.
So irrespective of whether or not you know,
this person is an undercover police officer,
you're letting folks in that you don't know
to see stuff that arguably could be illegal.
-: Well, the problem with that approach, your Honor,
is at what point do you have to make that scrutiny?
Because what - -: Wait, wait, wait,
suppose you as an attorney or just a person
came upon the account and took a fake name and signed on.
That's fine, isn't it?
Suzanne Renaud: That's a very different situation.
-: Why?
-: That's the United States versus White,
frustration of purpose.
I've already brought people in, I'm assuming a risk,
but this is actually coming to pass that a person
who I'm friends with,
is going to end up sharing it with the police.
-: No, but this is different though,
because he's sharing it with
the person he intended to share with.
This is different from Delgado in that sense.
He made he, whatever this person's name is,
he deliberately sent it to him.
-: Well that's a question of -
-: And ruse?
You're gonna ask us to overturn all of the ruse cases?
Suzanne Renaud: Certainly not, your Honor.
-: Okay so how do we?
-: What I'm saying that factually here,
so what you're pointing out your Honor, is that,
you know, he consented to let this officer in.
So that comes to question
that second question that I wanted -
-: He consented to let this person in.
And he has, and again,
we're measuring a subjective expectation of privacy, right?
So he, he's not someone who keeps his circle of trust close.
He's showing someone he barely knows,
that he's engaging in illegal activity.
Does that reflect that he has -
-: I have a problem with that approach, your Honor,
because you are presuming that it's his burden
to show that, he had to keep it close.
Because that's how the judge below addressed the question.
-: It's his burden to establish
an expectation of privacy, right?
-: But if he has established that he is,
that the account itself fundamentally is private.
The account itself is private
because only people in that circle that he lets in.
-: But wait, there's another step here,
is it private because he took an affirmative step
to make it private,
or does Snapchat just default you to private?
Suzanne Renaud: I don't know that that matters,
your Honor. -: I think, why not, why not?
-: He did in fact have a private account
and it is also defaulted to private.
We, both of those things can be true.
-: But the problem is the judge made findings
that are contrary to you.
-: But not on that point, your Honor.
Not on the point of whether or not, you know,
she discredited what he said,
but if you look at not his testimony,
but Officer Connolly's testimony,
that is clearly a private account.
-: Oh no, no, no, no,
there's no questions of private account,
and that's why your first.
-: As far as her discrediting him, I mean,
as I noted in the reply brief,
there are certainly many issues that are involved with,
I think that the reason why she discredited him
are based on some misreading of some of the facts.
-: We have to dive into that to see
if it's supported by the evidence
or if it's clearly erroneous rather.
And then, but your other argument is
that we should look at more in some of the other cases
and assume a subjective expectation of privacy?
-: There is that. And you know,
I feel like I'm running out of time,
I haven't even addressed the consent issue.
I mean, you know, with Mora as well.
I just, just to throw this out here,
I know that the Commonwealth cited Mora for this purpose,
if you did not find that
he had a subjective or objective expectation of privacy
under the mosaic theory,
you can certainly find that sitting on a couch for a month
using this unlimited technology,
would create an expectation of privacy,
which would also be, get the need to make sure
that there was consent and that this ruse
was not done in appropriately.
But I just wanted to mention one thing on the ruse question,
because obviously it's the court Commonwealth's burden
and I don't believe that they supported that
with sufficient evidence,
but there's also a question of reasonableness of the use of
the ruse and Pagan-Gonzalez, which the Commonwealth cites,
also cites Lefave which says
this is about a consent to a ruse to see something criminal.
There was nothing criminal, in this case.
The government was just using the ruse
for an unlimited general search,
a fishing expedition, if you would,
and I would say to even say,
get to the point where they're allowed to use
that very, very powerful law enforcement tool
with no suspicion,
is also unreasonable under the circumstances.
-: So are there again, just so I'm trying to understand,
are there cases that say that ruses can't be used by police?
I mean, police unless there's reasonable suspicion
of criminal activity, I'm just tryna get a sense of the -
-: Thank you, your Honor.
I think I just want to make sure
I cite to the correct case here.
Lewis at page 211 suggests
that there has to be a specific, limited purpose.
But then Gon, Gonzalez at footnote 9 cites to Lefave,
which is just, you know, it's not, it's not the case,
but it is something that you might look at that,
that says that there has to be,
that there is a choice
to expose your criminal activity to other people.
And if you look at all of the cases,
the ruse cases that are cited in my brief
and the Commonwealth's brief,
every one of those cases in the Commonwealth
has a connection to some kind of criminal activity.
-: But they're gonna be because they were arrested.
'Cause I mean, we can't,
cops can't basically dress as meter readers
and knock on doors and say, "hey, can I come in?
I gotta check the meter."
-: Which is exactly what they're doing right here.
They see "Frio Fresh," don't know who he is,
don't know anything about him.
They don't, once they find out, is skewed,
they have absolutely no reason to suspect that he's involved
in any kind of crime,
except for the fact that he had an old gun case
when he was younger, that he had served his time on.
-: So has any, any court imposes
prerequisite on the police for ruses?
-: I think that there has to be some, you know,
maybe it doesn't have to be him.
Maybe he - -: I'll, I'll, I'll
I'm showing it a Lefave as you cited,
but nobody's done that, correct?
-: No, I don't think that there is a case
directly on this point.
I think this is something that you could look at
under article 14,
because I think that there has to be some suspicion
because otherwise the ruses is,
especially when you use technology for it,
it's just a matter of sitting there
and waiting for somebody to commit a crime,
if they in fact do it.
And with almost no police resources -
-: Now council, what if an undercover police officer
decided to go sit in the Boston Common on a bench and wait.
And eventually somebody came up and said,
"you wanna buy some drugs?"
-: Well, your Honor, that would be different.
Justice Cypher: Why?
-: Because I don't believe this, again, is a private account.
So if you're not accepting the premise
that this is a private account than your analogies' apt.
But if you accept the premise that this was in fact,
a private account where he at least had
some role of letting people in and out,
it doesn't have to be a highly scrutinized role,
but some rule of letting people in and out,
then the people who he's letting in and out
have to actually be people to whom he really consents to.
That is very different than sitting on Boston -
-: This isn't very different,
you've got somebody who has about a hundred followers,
sends out a Snapchat to people,
including people who he doesn't know,
who he has let in,
and every one of those people can take a screenshot
of that Snapchat.
And in Delgado-Rivera, the police went and took the phone.
Here, they're receiving the information.
There, they took it.
Here, they're just receiving.
-: Well, your Honor, I would say to that, number one,
he's sending it to all of those people,
and if one of those people brought it to the police,
we'd be in a different situation.
That would be closer, or if the police, you know,
like I said, you know, had a search warrant
for one of those other people's phones
and they saw the Snapchat,
that would be like Delgado-Rivera.
But here the question is, you know,
the police officer became one of those,
those friends by seeking consent.
And I think that, that makes it,
sorry, I lost my train of thought, here.
It makes it somewhat different because you know,
I know that there's a problem with crediting
Mr. Carrasquillo. And the judge said, "well,
I don't know if he knew who he was really friending."
But you can look at it the other way.
Why did he think this police officer was somebody he knew?
What were the attributes that made him think that?
So, you know,
she ultimately ends up discrediting him
because she's looking at it from the first prong.
When, if you look at it from the consent issue,
why does he even think that this police officer,
who incidentally isn't identifying himself
as a police officer,
and we don't know anything else about his profile,
why did he think that this was somebody he knew?
-: [Justice Wendlandt] Maybe he didn't.
-: And maybe he didn't, you know,
but we don't have enough facts on this, on this record.
And it's, the court is supposed to be able
to scrutinize the record to figure out where that line
was between consent and coercion.
And you just don't know what happened here
because we don't have the facts.
-: Can I, can I ask just a distinguishing question?
So the cops often pretend to be young children,
to identify people who are interested in kiddie porn or so,
and they use social media to track that stuff down.
So how do,
how do you distinguish the ruse, that ruse from this ruse?
'Cause there, I take it,
they're just generally exploring out there.
Suzanne Renaud: Sorry, it's hard for me to see you.
(Suzanne laughs)
-: I don't know that they're generally exploring
because your Honor,
I think those are different situations
where they come upon a server
that is sending out child pornography,
and then they're seeing who is actually
attaching themselves to that server.
I'm not saying the technology correctly at all,
but there is actually a suspicion there because the,
because the server hosting the child pornography,
in and of itself is criminal.
-: I think they're going more broadly than that.
At least, some of the cases we see,
they're, they're out on social media prowling around
in the same way that these,
this gang unit is monitoring things too.
I'm not saying you're not right,
that there should be some guidance maybe,
but I'm just not aware of any.
-: Well, I would just say that there is a factual distinction
because if they are trying to inculcate themselves
into the child pornography network,
there's already fundamentally a problem there.
And they're inculcating themselves
into Mr. Carrasquillo's social media network,
he's just some random guy, and that is a big distinction.
-: [Justice Wendlandt] Okay, thank you very much.
-: Thank you, your Honors.
-: [Justice Wendlandt] Hey, Mr. MacLean.
Ian MacLean: Good morning, may I please the court,
Ian MacLean, on behalf of the Commonwealth,
along with the Assistant District Attorney that handled
the case at the trial level behind me, Caitlin Fitzgerald.
Your Honors this court should
affirm the defendant's convictions
because the defendant failed to meet either prong
of his burden of establishing a reasonable
expectation of privacy.
The case is that simple.
We begin with the subjective prong,
the defendant offered his own testimony,
which was expressly discredited,
his testimony about the privacy settings
he employed on his account and who the people he was -
-: We need to review the record to see if, if,
if in fact it's supported or if it's clearly erroneous,
but let's skip to objective.
Ian MacLean: Yes, your Honor.
-: That the nature and what's marketed
as I understand it about Snapchat
is it's a femoral, it's a femoral message
as opposed to other means social media.
How does that not fit footnote seven of Delgado-Rivera?
-: Well, your Honor, the features of the,
of the social media application that exists
that were employed would feature into the analysis.
As this court noted in Delgado-Rivera,
it's basically a totality of the circumstances task
to evaluate what steps this person
took to attempt to maintain any privacy.
-: Right, so he's not sending a video out on the Instagram.
He's not putting it on Facebook,
he's doing it on something that's meant to disappear.
Now whether it doesn't,
people with more dexterous thumbs than me can screenshot,
it's a different matter.
But the marketing in the nature of Snapchat,
is it disappears, correct?
-: Correct, your Honor.
With 24 of this, using this feature, the Story feature,
when you post an image or a video,
it remains available to all of the people
that you have friended for a 24-hour period.
For an unlimited number of times,
they can access it in that 24-hour period.
And I point you to transcript 14 for the discussion
of the basic features of Snapchat in this record.
Justice Lowy: Can we go back to footnote seven because -
Justice Gaziano: Can I get the answer to that question?
-: So your Honor, it is a factor that would be considered,
but it is essentially almost no import here
because once the image is sent out
and the defendant has lost control of it to the recipient,
they have unlimited access for 24 hours.
They can show it to as many people
on their own devices they want to.
As I believe your Honor pointed out
during closing counsel's argument,
they can take a screenshot of it,
they can record it, they can memorialize it themselves.
They could then upload it anywhere to anyone in the world,
almost exactly as this court noted
with the text message in Delgado-Rivera.
Once the sender has lost control
of the content to the recipient,
they no longer have an objectively reasonable
expectation of privacy.
Here because Snapchat allows that image or video
to be available for 24 hours,
in an unlimited number of times
for that recipient to access it,
it's essentially the same.
They've completely lost control of the content
of the communication.
Justice Gaziano: You've answered my question, thank you.
-: I didn't know that.
So when, when you send something out on Snapchat,
I thought it did disappear in the question left open
in footnote seven of Delgado-Rivera,
it's a question, not an answer,
that we might have to address it,
but I didn't understand that was the technology.
-: Your Honor, there are two different primary functions
that Snapchat has.
I could send, if you and I were friends on Snapchat,
I could send you directly an image.
And in the settings,
I can determine how long that image will exist
before it then disappears and it's gone forever.
I could set it as short as just a few seconds,
but if I've posted something to what we commonly refer
to as my Story,
meaning every person who I've friended can see it,
it remains available for 24 hours
and every friend can access it
as many times as they want to,
unless I take the affirmative step
of then deleting an image or a video from my Story.
-: All right, I'm sorry that this was so far over my head,
but do we know which one of those occurred in this case?
-: Your Honor, he was posting images to his Story,
and you can see that in the transcript at 14,
where again when he's describing his understood,
the officer's describing his understanding
of how the Snapchat functions, how it works itself.
And that he had to friend the person,
and then once you were friended at, I believe it was 33,
he indicated that he could see them -
-: If this thing was available for 24 hours
and was readily saveable,
how come the cops couldn't do it?
-: Your Honor, I think you have a slight confusion
about the facts here.
There were two separate videos that were viewed.
One was saved and actually I introduced
into evidence as exhibit one.
That was the video that showed the defendant,
holding the gun itself.
The second video that was observed
is how the officers were able to think where he was,
'cause they recognized the background.
That video was deleted before they were able to memorialize.
-: Was that a Story or was that the second type?
Ian MacLean: Story, your Honor.
-: But no -
-: [Justice Wendlandt] The second one.
-: The second's down -
-: [Justice Wendlandt] The one recognized.
-: That gave them the location,
was that a story or is it the other thing?
-: It's our understanding that it's a Story, your Honor.
And that's because the officer testified
that he never had any direct one-on-one communications
with the defendant.
So from that we infer that because he was able to see it
and he never had any direct communications
it had to have been a posting to the Story.
That the defendant must have for some reason,
chosen to enter his Snapchat application
and take that video down.
And that's why it didn't remain there
for them to access it again, to record it.
-: I should probably ask my children this instead of you.
But if, if somebody sends a personal Snapchat
to somebody else and they say that it's only good
for a couple of seconds, those couple of seconds don't start
until the person opens it up
and gets a chance to look at it, right?
-: Right, your Honor, correct your Honor.
-: Is this a different case with the couple seconds snap
versus the Story?
-: Respectfully, no, your Honor.
If I, if the defendant had sent a Snapchat message
to a direct friend,
that person still has complete access over it
while the image shows up,
but just takes a click of the phone
to create a screenshot image of it,
and then you have it permanently.
So he still lost control of the content
if he had would have taken an additional -
-: Well, how do you justify that answer
in light of our jurisprudence under Blood?
I mean, at that point,
he's just talking to somebody effectively in his home
under Justice Gaziano's analysis.
-: So your Honor, in, in Delgado-Rivera,
we factor in all of the circumstances.
So that certainly would be a circumstance
that would be factored in,
how, what specific function he was using within Snapchat
and how he had altered the settings or whatever.
-: So your answer to Justice Gaziano's question is
yes, it depends, not, it's the same.
-: But my answer is it sort of, your Honor,
my answer is it factors into the analysis
because it's essentially -
Justice Gaziano: But it's loading,
you basically want all social media
to be open to the police, if that's the case.
-: Your Honor, here,
it's social media that the defendant chose to friend
an undercover officer to.
So drawing an analogy to the line of ruse cases
that someone -
-: Then we shouldn't have written
the footnote seven in Delgado-Rivera.
-: I, I would disagree with that as well, your Honor.
It is that the features of the device being used
are something that could be factored into your analysis.
-: You want to factor it in, but it's, it's, it's, it's,
it's a nothing burger under your analysis, right?
(all laughs)
-: I guess I don't understand how one does not
have a reasonable expectation of privacy
on a direct message snap that one sends
and deletes in, in a second.
I mean, that seems like your,
your definition of privacy is very narrow.
-: Once you've taken it down to a second as,
as the Commonwealth conceives all of these things
will be factored into the analysis
and the totality of circumstances.
Once you've taken it down, setting down to a second,
you're not much closer to the hypothetical you posted up to
being essentially the equivalent of a communication,
a direct communication.
-: But what if it's an hour?
-: An hour would mean I would have,
I could set the phone down,
go for a walk, come back,
and it was still be there available to me.
It would be so easy for a person to take a screen capture
or take a video of it, to memorialize it, permanently.
-: But then you're getting to a real problem here,
because if we're supposed to be providing guidance
to the lower courts,
where are we going to draw the line then?
-: Well, respectfully, your Honor,
it's the totality of the circumstance type test
as so many other legal tests exists.
Justice Georges: Sure, but it could -
-: Evaluated on a fact by fact, in a case by case,
and fact by fact basis.
Here, the defendant didn't do anything
to maintain any semblance of privacy over his account.
He was posting the videos we're talking about in this case,
to his Story, making them available for 24 hours.
-: Let's, let's, let's assume for the sake of argument
that he has demonstrated
a subjective expectation of privacy.
Can we go to, whether that is reasonable in this day and age
with the way social media is handled
and the way people get into accounts,
and why does anybody have an objectively reasonable
expectation of privacy in any, any electronic communication?
-: Well, respectfully your Honor,
employing the analysis this court just used
in the Delgado-Rivera,
it's once you've lost control over it,
it's the same analysis that have been used,
starting with letters, then through packages,
then emails, phone calls, text messages, most recently,
You have the expectation
while you still control the information.
Then while it's in transit,
was a letter or a package as UPS is shipping it -
-: Well, but those are covered by federal regulation.
Letters are covered by the mail laws.
-: Yes, your Honor, but the,
the reasonable expectation of privacy analysis
is still the same.
We recognize a reasonable expectation of privacy while the,
the information or the content of the package
is sealed and in transit.
But once the recipient receives it,
the sender has lost all control over it.
And then that basically means your initial subject
of expectation is no longer objectively reasonable
because as the recipient, I can disseminate it to anyone.
When we get down to using a tool
that would only make the information available for a second
or a fraction of a second,
you're much closer than to a one-to-one communication.
But again, that's not what happened here.
He sent videos that were available for a 24-hour period
to every one of his people on his friends list,
and it's clear from the record
he was employing no real security protocol.
So we're sort of in the realm of,
kind of like the D'Onofrio case from quite a while ago,
where it was a private club
that had a policy about security measures.
But just because they had a policy
doesn't mean they were actually employing it.
Which essentially meant the doors are open to our business,
which is basically what the defendant did here.
Someone sent him a friend request
and he just accepted the friend request
and then voluntarily chose to send them information.
When he did that,
when he voluntarily sent them the information,
he lost control over the information.
-: Now, counsel, could you answer,
'cause you brought up the D'Onofrio case,
your, your Assistant's argument about,
but at least in that case,
they had a suspicion of criminal activity
that they were investigating.
This, this isn't that.
There was no indication here that,
that the defendant had been involved
in any criminal activity, when the friend request was made,
when the ruse was employed.
-: Correct, your Honor and there doesn't need to be.
An undercover officer, could in Boston Common
dress himself with the appearance
of what he thinks a typical drug user looks like
and randomly approach people in Boston Common
to see if they're willing to sell him drugs or not.
He doesn't have to have even a reasonable suspicion
to engage in a voluntary encounter with a citizen somewhere.
That's basically what happened here.
-: Well, not really, because in that case, you're,
the police officers kind of creating it, right?
Because you're going in, you're affirmatively asking,
you know, can, you have drugs to sell?
In this case, the, the,
the point I was making that your counsel referenced,
going back and saying,
you can just sit back and watch, right?
You, you employ the ruse,
You have no suspicion of any criminal activity,
but now you get into Mora, right?
Where you're just sitting back
and just waiting for somebody to step in it.
-: Well, I have two responses, your Honor.
First, I'd say it's categorically different than Mora
where it's surreptitiously recording everything
that you're doing.
Where in Mora, it was the outside of your house.
So who's coming and going, when they're coming and going,
interfering with your associations.
Here, the only information that they're accessing
is what the defendant himself is voluntarily choosing
to send directly to them.
So it's categorically different from Mora in that regard.
Second response would,
would loop in Justice Kafker's point
about the To Catch A Predator type of cases.
Where an undercover officer will pose as a minor or a child,
and then work their way into communication networks.
In the older days,
when I worked those cases at the U.S. Attorney's Office,
it was message boards, they were communicating on.
I'm not current with how they're doing it now,
but they must be using tools
like Snapchat, Facebook, other social media applications,
to work themselves into these communication networks,
to see who then they should be taking a closer look at.
It's basically the same activity here.
-: This gets more concerning,
in the breadth of this is kind of,
is what seems to be worrisome.
So under your approach,
and I get that cops are doing this to detect porn
and other things, particularly kitty porn and other things,
but we're basically, you're basically saying that
they can just go out on social media and go exploring.
Any public, and you may be right,
but it is concerning that they can just basically
look through everyone's social media accounts,
particularly any public aspects of those media accounts
and sort of you know, basically go hunting.
Is that right?
'Cause you're essentially saying they can do that, right?
-: Yes, your Honor.
Just as any law enforcement officer can have a voluntary
encounter with any citizen on any street corner.
-: It's a little different though,
when we're talking about social media, which is,
as you know, basically the Supreme court says in Carpenter,
you know, our whole lives are out on social media, right?
And so the police now have, I'm not, again,
I'm not saying they can't do this,
but it's concerning that they have complete access
to this unlimited amount of social media
for all of us, right?
-: No, your Honor.
And I disagree with the analogy to Carpenter and the,
then the cell phones becoming an appendage
and an essential part of modern life.
You can use social media here
without friending unknown people.
Justice Kafker: Right.
-: Just as you can allow people into your house
and exclude unknown people.
And is that would be completely permissible
in the context of a house,
which we consider first among equals
for privacy protections.
You can't afford more protections to someone's social media
than to the front door of their house.
-: Right, I know, but the problem we have is
that our social media is revealing of our personal lives
as our house is at this point.
So it gets tricky.
-: Only what you what you choose
or volunteer to put out there.
Justice Kafker: Right, I getcha.
-: You can participate in modern life as I do,
without being a participant on social media networks.
That's a choice that someone has made,
just as you would make a choice
when someone knocks on your front door,
whether to let them in or not.
The check that you employ there in the,
at your front door is listening to their voice,
do you recognize the voice,
looking through the peephole,
do you recognize the person,
do you want to let them in or not?
That's employing some level of security
and the burden or the onus is on the person in their house.
In the social media context,
you still have to employ some level of security,
some level of check.
If you just let anybody in who solicits,
you have an open door policy,
and they can view whatever you choose to put out there
into the world and you vitiated any objectively
reasonable expectation of privacy.
-: If we get past the subjective expectation of privacy here,
and we're looking at the objective,
do we need to address the defendant's
argument property-based argument?
-: No, your Honor, there's no property interest in the,
in the content of the communication.
Once you have sent it out to a hundred people
with their ability to have complete
and unfettered access to it for 24 hours
to duplicate it in any way they choose
and to send it on to anyone they choose to.
You've lost any, any even arguable property interest
that you would have,
which in part is through the ability to excise or exercise
exclusive community control,
and we've given that part in parcel
with losing control over it,
just as the text messages in Delgado-Rivera.
-: Can I ask you one last question for, for me anyway.
When do we measure the reasonable expectation of privacy
and the consent issue?
Is it,
is it with each story posts?
You know, did I have a reasonable expectation of privacy
in that post?
Or is it vis-à-vis the account?
'Cause it seems like we're all talking about the account,
but each time one posts a Story on Snapchat,
you make a choice as to who you send it to.
It sounds like you can direct, directly snap a person
for a particular period of time, but then you can also snap,
you know, everybody who you're friends with
and you can also unfriend people, right?
So each time you post something,
there's a choice that you're making as the user of Snapchat.
Is that when we measure the reasonable expectation
of privacy or is it vis-à-vis the account
as a whole once set up?
-: Well, your Honor, I think under Delgado-Rivera,
totality of the circumstances,
so you'd have to factor in the ability
to change your privacy settings
on every individual interaction.
So as the defendant testified to the officer, did not,
the defendant testified some,
you can make a choice for each individual post,
whether it's going to be publicly available to the world
or available only to your friend group or whether
it's going to be a direct one-to-one communication.
So it's gonna be on a case by case basis
and what the defendant is trying to suppress.
'Cause it could be a case where some of the things they
sent out, they sent to the entire world, writ large.
Some of the things they sent
were just to their friend group,
some of the things were a direct one-to-one communication.
So there'll be a different analysis for each one.
So I think the answer has to be
a case by case analysis of what we're talking about here.
Now as to when we conduct the analysis about,
about the ruse your Honor, that would be when,
when it occurred.
Just as an undercover officer knocking on your front door
and asking to come in to buy some drugs,
you conduct the analysis right then about the defendant,
giving them, the undercover officer access to the house.
And then what the undercover officer sees or does
inside the house, will be evaluated separately.
There are no more further questions?
-: [Justice Wendlandt] Thank you very much.
We'll take our morning break.
Bailiff: All rise!