Massachusetts Court Says No Expectation Of Privacy In Social Media Posts Unwittingly Shared With An Undercover Cop

from the going-to-need-to-have-a-deeper-discussion-about-expectations dept

Can cops pretend to be real people on social media to catfish people into criminal charges? Social media services say no. Facebook in particular has stressed -- on more than one occasion -- that it's "real name" policy applies just as much to cops as it does to regular people.

Law enforcement believes terms of service don't apply to investigators and actively encourages officers to create fake accounts to go sniffing around for crime. That's where the Fourth Amendment comes into play. It's one thing to passively access public posts from public accounts. It's quite another when investigators decide the only way to obtain evidence to support search or arrest warrants involves "friending" someone whose posts aren't visible to the general public.

What's public is public and the third party doctrine definitely applies: users are aware their public posts are visible to anyone using the service. But those who use some privacy settings are asking courts whether it's ok for cops to engage in warrantless surveillance of their posts just because they made the mistake of allowing a fake account into their inner circle.

Accepting a friend request is an affirmative act. And that plays a big part in court decisions finding in favor of law enforcement agencies. Getting duped isn't necessarily a constitutional violation. And it's difficult to claim you've been unlawfully surveilled by fake accounts run by cops. You know, due diligence and all that. It apparently makes no difference to courts that cops violated platforms' terms of service or engaged in subterfuge to engage in fishing expeditions for culpatory evidence.

Massachusetts' top court has been asked to settle this. And the state justices seem somewhat skeptical that current law (including the state's constitution) allows for extended surveillance via fake social media accounts. No decision has been reached yet, but lower courts in the state are adding to case law, providing additional precedent that may influence the final decision from the state's Supreme Court.

This recent decision [PDF] by a Massachusetts Superior Court indicates the courts are willing to give cops leeway considering the ostensibly-public nature of social media use. But it doesn't give the Commonwealth quite as much leeway as it would like.

Here's how it started:

After accepting a "friend" request from the officer, the defendant published a video recording to his social media account that featured an individual seen from the chest down holding what appeared to be a firearm. The undercover officer made his own recording of the posting, which later was used in criminal proceedings against the defendant. A Superior Court judge denied the defendant's motion to suppress the recording as the fruit of an unconstitutional search, and the defendant appealed. We transferred the matter to this court on our own motion.

Here's how it's going:

Among other arguments, the defendant suggests that because his account on this particular social media platform was designated as "private," he had an objectively reasonable expectation of privacy in its contents. The Commonwealth contends that the act of posting any content to a social media account de facto eliminates any reasonable expectation of privacy in that content.

The competing arguments about expectation are (from the defendant) "some" and (from the Commonwealth) "none." It's not that simple, says the court.

Given the rapidly evolving role of social media in society, and the relative novelty of the technology at issue, we decline both the defendant's and the Commonwealth's requests that we adopt their proffered brightline rules.

In this case, Boston police officer Joseph Connolly created a fake Snapchat account and sent a friend request to a private account run by "Frio Fresh." Fresh accepted the friend request, allowing the officer access to all content posted. In May 2017, Officer Connolly saw a "story" posted by "Frio Fresh" that showed him carrying a silver revolver. Connolly recorded this and passed the information on to a BPD strike force after having observed (but not recorded) a second "story" showing "Frio Fresh" in a gym. The strike force began surveilling the gym and soon saw "Frio Fresh" wearing the same clothes observed in the first story (the one the officer was able to record with a second device). Strike force members pursued "Frio Fresh" and searched him, recovering the revolver seen in the Snapchat story.

The court recognizes the damage free-roaming surveillance of social media can do to constitutional rights, as well as people's generally accepted right to converse freely among friends.

Government surveillance of social media, for instance, implicates conversational and associational privacy because of the increasingly important role that social media plays in human connection and interaction in the Commonwealth and around the world. For many, social media is an indispensable feature of social life through which they develop and nourish deeply personal and meaningful relationships. For better or worse, the momentous joys, profound sorrows, and minutiae of everyday life that previously would have been discussed with friends in the privacy of each others' homes now generally are shared electronically using social media connections. Government surveillance of this activity therefore risks chilling the conversational and associational privacy rights that the Fourth Amendment and art. 14 seek to protect.

Despite this acknowledgment, the court rules against the defendant, in essence saying it was his own fault for not vetting his "friends" more thoroughly. The defendant seemed unclear as to Snapchat privacy settings and, in this case, willingly accepted a friend request from someone he didn't know who used a Snapchat-supplied image in his profile. In essence, the court is saying either you care about your privacy or you don't. And, in this case, the objective expectation of privacy is undercut by the subjective expectation of privacy this user created by being less than thorough in his vetting of friend requests.

Nonetheless, the defendant's privacy interest in this case was substantially diminished because, despite his asserted policy of restricting such access, he did not adequately "control[] access" to his Snapchat account. Rather, he appears to have permitted unknown individuals to gain access to his content. See id. For instance, Connolly 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 Connolly's photograph. By accepting Connolly'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.

[...]

Indeed, Connolly was able to view the defendant's stories precisely because the defendant gave him the necessary permissions to do so. That the defendant not only did not exercise control to exclude a user whose name he did not recognize, but also affirmatively gave Connolly the required permissions to view posted content, weighs against a conclusion that the defendant retained a reasonable expectation of privacy in his Snapchat stories.

The final conclusion is that this form of surveillance -- apparently without a warrant -- is acceptable because the surveilled user didn't take more steps to protect his posts from government surveillance. There's no discussion about the "reasonableness" of officers creating fake accounts to gain access to private posts without reasonable suspicion of criminal activity. Instead, the court merely states that "undercover police work" is "legitimate," and therefore not subjected to the same judicial rigor as the claims of someone who was duped into revealing the details of their life to an undercover cop.

The defendant may get another chance to appeal this decision if the state's Supreme Court decides creating fake accounts to trawl for criminal activity falls outside the boundaries of the Constitution. Until then, the only bright line is don't accept friend requests from people you don't know. But that's still problematic, considering there's no corresponding restriction on government activities, which may lead to officers impersonating people from targets' social circles to gain access to private posts. And when that happens, what recourse will defendants have? The court says it's on defendants to protect their privacy no matter how many lies law enforcement officers tell. That shifts too much power to the government and places the evidentiary burden solely on people who expect their online conversations to be free of government surveillance.

Filed Under: law enforcement, massachusetts, police, privacy, sharing information, social media, third party doctrine, undercover
Companies: snapchat

Kia, Subaru Disable Useful Car Features, Blames Mass. Right To Repair Law

from the underhanded-gibberish dept

In late 2020, Massachusetts lawmakers (with overwhelming public support) passed an expansion of the state's "right to repair" law. The original law was the first in the nation to be passed in 2013. The update dramatically improved it, requiring that, as of this year, all new telematics-equipped vehicles be accessible via a standardized, transparent platform that allows owners and third-party repair shops to access vehicle data via a mobile device. The goal: reduce repair monopolies, and make it cheaper and easier to get your vehicle repaired.

Of course major auto manufacturers didn't like this, so they set about trying to demonize the law with false claims and a $26 million ad campaign, including one ad falsely claiming the expansion would only really help sexual predators. Once the law passed (again, with the overwhelming support of voters) automakers sued to stop it, which has delayed its implementation. Simultaneously, they're pushing legislation that would delay the bill's launch date until 2025, giving them more time to kill it.

In the interim, companies like Kia and Subaru have started disabling useful features (like remote start), and blaming the law:

"Subaru disabled the telematics system and associated features on new cars registered in Massachusetts last year as part of a spat over a right-to-repair ballot measure approved, overwhelmingly, by the state’s voters in 2020. The measure, which has been held up in the courts, required automakers to give car owners and independent mechanics more access to data about the car’s internal systems.

But the “open data platform” envisioned by the law doesn’t exist yet, and automakers have filed suit to prevent the initiative from taking effect. So first Subaru and then Kia turned off their telematics systems on their newest cars in Massachusetts, irking drivers like the Ferrellis. “This was not to comply with the law—compliance with the law at this time is impossible—but rather to avoid violating it,” Dominick Infante, a spokesperson for Subaru, wrote in a statement. Kia did not respond to a request for comment."

Recall that the Massachusetts law needed to be expanded in the first place because automakers were behaving in predatory ways as they attempted to monopolize repair. That law is now on hold... and may never actually be implemented...because of the industry lawsuit. While complying with it may prove difficult given the archaic nature of many car systems (Wired finds an engineer willing to argue as much), completely disabling all telematics system seems performative. You're to assume that the same industry that falsely claimed the law would only be of benefit to sex pests, is genuinely worried about compliance and not, say, interested in finding creative ways to vilify the new law or gain leverage in the ongoing lawsuit aimed at killing it entirely.

Given the industry's track record of honesty so far on this subject, trusting that this truly was a purely technical consideration feels like a big ask.

In the interim this is only one of countless battles no going on around the country as consumers, farmers, medical professionals, and others fight back against obnoxious DRM, repair monopolies, and draconian crackdowns on independent repair. Three different federal right to repair legislative proposals were introduced this week alone, in addition to more than a dozen state proposals already introduced. At this point, for repair monopolists, the right to repair movement is a sort of finger trap puzzle in that the more they wriggle and clamp down on independent, affordable repair options, the bigger the movement gets.

Filed Under: disabling features, massachusetts, remote start, right to repair, telematics
Companies: kia, subaru

Automakers Continue Efforts To Scuttle Popular Mass. 'Right To Repair' Law

from the fighting-the-tides dept

In late 2020, Massachusetts lawmakers (with overwhelming public support) passed an expansion of the state's "right to repair" law. The original law was the first in the nation to be passed in 2013. The update dramatically improved it, requiring that as of this year, all new telematics-equipped vehicles be accessible via a standardized, transparent platform that allows owners and third-party repair shops to access vehicle data via a mobile device. The goal: reduce repair monopolies, and make it cheaper and easier to get your vehicle repaired.

Of course major auto manufacturers didn't like this, so they set about trying to demonize the law with false claims and a $26 million ad campaign, including one ad falsely claiming the expansion would help sexual predators. Once the law passed (again, with the overwhelming support of voters) automakers sued to stop it, which has delayed its implementation. That same coalition of automakers (GM, Ford, Honda, Hyundai) are pushing new legislation that would delay implementation even further -- to 2025:

"The results of the lawsuit are still pending and automakers continue to fight. On Monday, Massachusetts' Committee on Consumer Protection and Professional Licensure heard automaker backed proposals that would delay the implementation of the law until 2025. “After spending $26 million only to be resoundingly defeated at the ballot box, the big automakers and dealers still don’t get it,” Tommy Hickey, director of Massachusetts Right to Repair Coalition, said in a statement."

As with Apple, John Deere, and others, the claim that doing absolutely anything about their efforts to monopolize repair (be it DRM, or making manuals and tools hard to get, or suing independent repair shops) erodes public health and safety. Apple, you'll recall, opposed a state right to repair law in Nebraska by claiming it would turn the state into a "mecca for hackers."

But it remains an uphill climb for industry. Obnoxious and costly repair restrictions are hugely unpopular, and efforts to do something via legislation are overwhelmingly popular. More than 75% of Massachusetts voters supported the state's expansion of the law. And the more these companies tend to fight back against the efforts with sleazy and misleading claims and ad campaigns, the more the public tends to become aware of (and ultimately support) these initiatives.

Filed Under: automakers, massachusetts, ownership, right to repair

Massachusetts Supreme Court Tackles Law Enforcement Use Of Cell Tower Dumps

from the collect-it-all dept

Years after they've become a go-to tool for law enforcement to work their way backwards to suspects, the Massachusetts Supreme Court is wrestling with the issue of cell tower dumps.

Cell tower dumps can often be had with only a subpoena. They give investigators access to all cell phones that were in the area of the tower at certain times. Investigators peruse these lists of numbers to try to find numbers that might be linked to someone who committed a crime. The problem is investigators don't know who that "someone" is, so they, however briefly, turn everyone in the area into a suspect.

The Third Party Doctrine tends to control this collection of data. The information is collected as a necessary part of cell phone operation. Therefore, there's no expectation of privacy in this information, the theory goes, since users are aware service providers need this information to provide service. And it very well may be that cell users are aware of this. What they generally don't expect is that law enforcement can obtain this data without a warrant, or, indeed, obtain it at all when investigators don't even know who they're looking for.

The thorny issue of tower dumps is before the court, which now has the US Supreme Court's Carpenter decision to consider as well, something it didn't have prior to June 2018. In that decision, the Supreme Court says there was an expectation of privacy in cell site location data, which tower dumps are, even if they contain information on hundreds or thousands of people, rather than the more targeted collection of cell site location info related to a single targeted number.

The Carpenter decision was rather narrow, holding that use of cell site location info to track people's movements requires a warrant. But it also stated clearly that there's an expectation of privacy in these records, whether or not they're collected long term or once via a tower dump. The tracking was the issue here, but Carpenter changed how courts view cell site location info.

The state of Massachusetts has its own constitution to factor in as well. And in some cases, state constitutions have proven more protective of rights than the US Constitution, which is considered to be the floor for rights, rather than the ceiling.

Thomas F. Harrison covered the oral arguments in the Massachusetts Supreme Court for Courthouse News Service. And from what's reported here, it appears the justices aren't all that keen on pretending working backwards from untargeted data dumps isn't the sort of thing the public expects to be happening with the phone records they generate simply by taking their phones wherever they go.

"Doesn’t society have an objective expectation that you’re not going to be caught up in a police search in this way," Justice Scott Kafker asked, noting that “the idea that 50,000 people are potential suspects is a bit much."

While the justices seemed to think the police met strict constitutional standards in this case, they also worried that allowing the government to indiscriminately sweep up location data for hundreds or thousands of innocent people could lead to a dystopian result.

“It’s a slippery slope,” said Justice Dalila Wendlandt. “You could find out if a person was home at 4 a.m., or if he was in a Catholic church at 10 a.m. on Sunday.”

She added: “If you had enough data points you could put together a very good picture of Justice Wendlandt’s private life.”

“You could see if a person was at a political event or other association,” fretted Justice David Lowy.

The underlying case involved a lot of phone records. Six robberies and zero suspects led police to obtain tower dumps from near those locations, resulting in the collection of nearly 51,000 phone records. From that, police tracked down one suspect, Jerron Perry, who is charged with murder because someone was killed during one of the robberies. Perry challenged the tower dump evidence, which was rejected by the trial court, leading to this appeal to the state Supreme Court.

But this case may not go Perry's way. Unlike countless other cases, a warrant was actually obtained to collect this data. The question is what's the limit to collections obtained with warrants. Does a warrant whose only probable cause is that it's likely the service provider has these records still abide by the Constitution? Perry's representatives and entities filing amici briefs say this goes too far, making it something closer to the "general warrants" the US Constitution aimed to eliminate.

At this point, it's unclear how the justices will lean. Some, like those listed above, seemed concerned about what this does to the expectation of privacy. Others, however, did not see the warrants as "general," noting that not all warrants need to be particularized to a person. They also noted the only towers "searched" were those near the scenes of robberies, which (somewhat) particularized the searches, even if the cops had no idea who they were looking for.

And one justice said the facts of this case allowed the police to slide on one underdeveloped probable cause assumption.

Justice Serge Georges was troubled that the police simply assumed that the perpetrator had a cellphone.

“The government gets past first base without showing that a cell phone was part of the crime,” he said. “There’s just this notion that everyone has a cellphone, and it’s on. That’s just bald speculation. We have no reason to think the person who committed these crimes had a phone. We’re just going to assume. That’s the part that really bugs me.”

That is concerning. Given what's known about how often investigators start investigations with phone records -- along with how easily they can be obtained -- some criminals are probably leaving their phones behind when committing crimes. The government should have more to work with than an assumption that might be incorrect, especially when that assumption allows them to collect data in bulk.

If the court decides warrants can't be used to collect bulk data, it will be a significant privacy win for residents of the state. It will also be the first of its kind in the nation -- a prohibition on the untargeted collection of cell site location info.

Filed Under: 4th amendment, cell tower dumps, data, law enforcement, massachusetts, warrants

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."

Filed Under: 4th amendment, massachusetts, police, social media, warrantless surveillance

Massachusetts' Top Court Says Police Need Warrants To Search Body Camera Recordings

from the no-rummaging-through-the-servers dept

Body-worn cameras were supposed to usher in a new era of police accountability. That hasn't happened. At best, they've generated a ton of additional footage of interactions and arrests that may prove valuable to criminal defendants and people filing civil rights lawsuits. "May" is the operative word. Cops still control the footage, which limits public access and increases the odds that unflattering/unhelpful (to police) footage rarely ends up in the hands of the public. The end result is that prosecutors have been the biggest beneficiary of this so-called accountability tech.

A case in Massachusetts has raised some interesting constitutional questions about body cameras and recordings. Officers responding to a domestic violence call recorded the interior of a home with their body cameras. Weeks after that call, they accessed the footage to find corroborating evidence that was used to apply for a search warrant. One of these is a constitutional violation, Massachusetts' Supreme Judicial Court has ruled. (via Courthouse News)

Here's what happened during that domestic disturbance call, as recounted in the opinion [PDF]:

After the first responding officers had entered the apartment, another officer arrived who was equipped with a bodyworn camera, which recorded the areas of the home through which he moved, as well as his interactions with the defendant, his sister, and others in the apartment, including a number of police officers. The video footage obtained shows that when the officer arrived at the home, the door was ajar; he entered the living room, where at least two other officers were present…

The officer wearing the camera walked past the defendant's sister and ascended the stairs. Standing at the top of the staircase, he spoke with the defendant, who was standing at the threshold of a bedroom. Through the open bedroom door, the camera captured a woman in the background. The woman was zipping her coat. Floral-printed curtains adorned the bedroom window just behind the area where the woman was dressing.

The sister shouted from downstairs, and the defendant yelled "shut up." He explained to the officer with the camera that the girlfriend could not be rushed, as she was getting dressed, but that they would leave shortly. Once dressed, the girlfriend and the defendant moved toward the stairs; they were stopped by the officer.

The "floral-printed curtains" would later prove instrumental in building a case against the defendant. The officer who uploaded the photo informed detectives about its existence, since the defendant was one of several suspects being investigated by the Boston PD's gang task force. He was already under surveillance by the BPD, with a couple of officers managing to successfully "friend" the defendant on Facebook, giving them access to his posts.

Here's where the distinctive curtains resurfaced:

Two weeks after the domestic disturbance call, the detective noticed that the defendant had posted what the officer believed to be a recently created video recording of the defendant holding a firearm in a bedroom, with floral-printed curtains visible in the background. After he saw the posted recording, the detective retrieved the DVD containing the body-worn camera footage from his colleague and reviewed it.

Peering into the defendant's home caught on the body-worn camera footage, the detective saw the defendant's girlfriend zipping her coat in the defendant's bedroom, while standing next to what the detective believed were the same distinctive curtains visible in the posted video recording. This was significant to the detective because it established the location of the posted video recording that had showed the defendant apparently holding a firearm.

Using this information gleaned from the BWC recording made two weeks earlier, detectives obtained a search warrant for home, specifically noting the curtains seen in both the social media post and the officer's camera footage. The house was searched, resulting in the discovery of weapons and some marijuana.

The defendant argued the initial recording violated his Fourth Amendment rights. The court disagrees, noting that the recording of areas in plain view of the officer merely duplicated what the officer could see with his own eyes.

We conclude that, where, as here, the officer was lawfully present in the home and the body-worn camera captured only the areas and items in the plain view of the officer as he or she traversed the home, in a manner consistent with the reasons for the officer's lawful presence, the recording is not a search in the constitutional sense and does not violate the Fourth Amendment or art. 14. This conclusion follows from our jurisprudence regarding the photographic preservation of a crime scene.

Even though a recording is more "permanent" than an officer's memory, there's still no violation. Precedent says officers can document crime scenes and domestic disturbances fall on the long list of criminal acts officers are sent to respond to. The recording was not a violation, even though it could be accessed at any point past its creation by investigators.

However, the court says viewing the footage a few weeks later was unconstitutional.

[W]e conclude that while the plain view observation doctrine extended to the officer's recording of his interactions in the defendant's home in response to the domestic disturbance call, that doctrine cannot be stretched to sanction the subsequent review of the footage for reasons unrelated to the call.

The 21st century is no time to bring back some of the worst aspects of British rule, says the court.

The ability of police officers, at any later point, to trawl through video footage to look for evidence of crimes unrelated to the officers' lawful presence in the home when they were responding to a call for assistance is the virtual equivalent of a general warrant.

The BPD can't do that without a warrant, given the lack of connection between the domestic disturbance and any suspected gun/drug criminal activity.

Moreover, the subsequent review of the footage in connection with the unrelated investigation of the defendant falls outside the rationale justifying the recording in the first instance. Such a review is divorced from protecting police officers from false accusations of misconduct, ensuring police accountability, or preserving a record of police-civilian interaction. Instead, the use of body-worn camera footage in this manner, after the fact, for investigatory purposes unrelated to the domestic disturbance call, had the effect of allowing the gang unit detective to peer into the defendant's home for evidence to support an unrelated criminal investigation.

The government tried to salvage its warrantless search by claiming it was only a very small unconstitutional search. This argument is rejected as well.

[T]he Commonwealth contends that the BPD review of the body-camera footage was not extensive, and that the review was targeted at one specific detail, the floral-printed curtains in the defendant's bedroom. But the constitutional protection against unreasonable, warrantless searches is no less applicable to a targeted search than it is to a more extensive one.

With that detail removed from the warrant, the warrant most likely does not contain enough probable cause to justify the search of the house. The motion to suppress is granted and the case is kicked back down to the lower court, which will give the Boston PD one more chance to salvage its unconstitutionally gotten gains. But the line is clear. Recordings: good. Digging into saved recordings to aid in unrelated investigations: no good… not without a warrant.

Filed Under: 4th amendment, body cameras, massachusetts, recordings, warrant

Massachusetts District Attorney Delays Forfeiture Proceedings For Years, Some Involving As Little As $10

from the bringing-down-crime-lords-at-$10-a-pop dept

We all know how lousy civil asset forfeiture is. In lieu of actual criminal charges, cops (and feds) just seize any property they can get their hands on, turning other people's money into pure profit for law enforcement agencies. Money they can often spend with little to no oversight.

It's a profitable venture. Cops steal more than actual crooks do, netting billions a year across the nation. The legal process for forfeiture asks very little from law enforcement -- rarely more than a mild hunch the seized funds are linked to criminal acts. The government has a very low bar to meet in most cases. For the people who've suddenly seen their money taken away, the bar is much higher.

In most cases, the government gets to decide when forfeiture proceedings begin. It also doesn't have to make much of an effort to notify forfeiture victims that proceedings have begun. That leads to a lot of default wins for government agencies. The amount of money it takes to hire a lawyer to challenge a forfeiture is often more costly than the funds seized, leading to even more government "wins." Every cheap win is treated like a victory in the war on crime, even when it's usually nothing more than the government making some random person poorer.

In the state of Massachusetts, one particular District Attorney is ensuring there's no due process when it comes to asset forfeiture. Thanks to severely lax laws, there's no lower limit for seizures, which means the DA's office is more than happy to help cops nickel-and-dime people to figurative death. There's also no legal obligation for the office to move forward with forfeitures in a timely fashion.

This has led to the DA's office waiting for as long as possible to initiate some proceedings. And, since the office takes home a percentage of every successful forfeiture, it does as little as possible to ensure those who've had their money seized are made aware that proceedings are imminent. Saurabah Datar and Shannon Dooling have done some digging to produce this enraging report for ProPublica. (h/t @pakanukeha)

In an investigation with ProPublica, WBUR also found that Worcester County District Attorney Joseph D. Early Jr. regularly stockpiles seized money, including that of people not charged with a crime, for years, and sometimes decades.

In more than 500 instances between 2016 and 2019, WBUR found that funds had been in the custody of the DA’s office for a decade or more before officials had attempted to notify people and give them a chance to get their money back. One case dated back to 1990.

This is an obvious mockery of due process. And it has been the standard operating procedure for the Worcester County DA for more than 20 years. Not that anyone cares. Or could even be allowed to care. Nearly nonexistent reporting requirements means state and county oversight likely have no idea this is how the DA is handling forfeitures. Since there are no better rules on the books, there's nothing compelling DA Early to change how he handles his forfeiture business.

Operating in an accountability vacuum, the DA's office engages in bullshit like this:

Take, for instance, Commonwealth of Massachusetts vs. Twenty Eight Thousand Three Hundred Fifty Six Dollars Fifty Cents ($28,356.50) In United States Currency. At first glance, the sum seems to reflect proceeds from a substantial drug bust. But court documents actually list 109 separate names and seizures — including one as low as $11 — spanning nearly 20 years.

Among the names in this giant batch in 2018 was Jones-Bernier, whose $95 had been taken four years prior. He was listed in an ad the DA’s office ran in the Worcester Telegram & Gazette, as having no known address. Jones-Bernier didn’t know his name had appeared there until he was contacted by WBUR. He said Early’s office could have sent a letter to his home address, which was on his driver’s license at the time of the arrest.

This is how you end up with default "victories" that ensure the DA's office scores some cash while doing nothing to serve the interests of the public. Nothing about this deters criminal activity. The DA's office isn't helping cops put bad people away and disrupt major criminal organizations. This is the work of a government-funded pickpocket.

WBUR’s analysis of Worcester County forfeitures from 2017 through 2019 found that more than half of the seizures in these cases were for less than $500. In one incident, Fitchburg police seized $10 from a man listed as homeless. In another, Sturbridge police took $10 from a 14-year-old boy.

Stealing is the DA's business. And business is good.

His office brought in nearly $4 million in forfeitures in just the latest four years, from fiscal 2017 through 2020, according to analyses by the state’s trial court.

Despite all evidence to the contrary, the DA continues to claim this is a worthwhile venture, rather than the petty theft it appears to be.

Early said he’s proud that his office has spent large sums of confiscated money on youth programs and drug prevention. “I love taking the drug dealers’ money. I love taking their lifeblood and putting it back into the community,” he said.

Taking $10 from a 14-year-old is giving back to the community? Did you at least throw the homeless person's $10 bill into the general fund to support shelters? Is your county more free of drugs since you've thrown your weight behind shaking down citizens for spare change?

All signs point to no. Here's the data: Worcester County is still one of the most dangerous counties in the nation. Lifting loose cash from random residents hasn't improved things at all. If there's any downward trend noticeable here, it's got nothing to do with the supposedly drug warring DA. It has to do with the general trend towards lower crime rates that has been ongoing for years all around the nation. Here's the county's crime rate per 100,000 people, sourced from the FBI's crime data.

And the cops in Worcester are just as lousy as the District Attorney.

Worcester taxpayers have paid more than $4 million since 2010 to settle almost 30 lawsuits against the police department, according to records gathered by the group Defund WPD.

[...]

The payouts across the 27 settlements range from as low as $8,000 up into the millions. There are also more than a dozen lawsuits against Worcester police that haven't been settled yet.

Seems like the $4 million forfeited by the DA's office over the last four years would have covered the PD's lawsuits for an entire decade. Maybe that's where those funds should go. But until legislators in Massachusetts get serious about reforming this obvious abuse of an ideal, government employees like DA Early will continue to treat residents like ATMs.

Filed Under: asset forfeiture, civil asset forfeiture, district attorney, drug war, due process, joseph early, legalized theft, massachusetts

First Circuit Appeals Court Reaffirms Its 2011 Decision: The First Amendment Protects The Recording Of Cops

from the double-tapping-Glik dept

More than a decade ago, Simon Glik was arrested by Boston police officers for the "crime" of recording them in public. This was made possible by a law passed in the mid-60s, which turned Massachusetts into a "two-party" recording state. Unless the person doing the recording has the consent of the person being recorded, it's a violation of the state's wiretap law.

Glik successfully challenged this law, securing an Appeals Court ruling that stated the law was unconstitutional as applied to the recording of police officers in public places. This didn't immediately end the bogus arrests. Five years later, the government was taken to court again for enforcing this law in a way the Appeals Court said it couldn't. Also along for the ride was James O'Keefe's "Project Veritas," which argued the law was unconstitutional when applied to any public official in nearly any setting.

The federal court said the Glik decision applied to the recording of police officers, whether surreptitious or not. It pointed out the Boston Police Department had issued new guidance based on the Glik decision, but falsely portrayed acceptable recordings as limited to those cops knew were happening. Not so, said the court. Even surreptitious recordings of cops in public spaces are protected by the First Amendment. It didn't come to the same conclusion about Project Veritas' arguments, finding the law was not overbroad when it applied some minimal restrictions to recording public officials.

The Commonwealth still wants to abuse its bad law. It appealed this decision, sending it to the same court that had found its application of the law to the recording of cops unconstitutional nearly a decade ago. The First Circuit Court of Appeals says [PDF] the government's arguments are no better nine years later. Surreptitious recordings of police officers performing their public duties does not interfere with their work. Citizens are under no obligation to tell police officers they're being recorded. The government's interpretation of the law would just provide cover for misconduct.

Because the recording here will not be done in plain sight or with the actual knowledge of the officers whose words will be recorded, they will not even be aware that such recording is occurring. For that reason, they will not be on specific notice of a need to take precautions to ensure that words that they do not wish to have recorded are not. But, insofar as the mere prospect of being recorded leads officers to feel the need to refrain from uttering words or engaging in actions that would constitute misconduct, it hardly interferes with their capacity to perform their official duties.

Citizens deserve transparency and accountability. And if law enforcement agencies aren't willing to provide that on their own, citizens have the Constitutional right to gather information about police activities.

Accordingly, we conclude that the statute's outright ban on such secret recording is not narrowly tailored to further the government's important interest in preventing interference with police doing their jobs and thereby protecting the public. [...]

Rather, despite a record that does little to show how secret, nonconsensual audio recording of police officers doing their jobs in public interferes with their mission, Section 99 broadly prohibits such recording, notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public's ability to hold them to account for their wrongdoing.

The Commonwealth also raised the argument that people interacting with police might be recorded without their consent. Again, the court points out there's minimal expectation of privacy in conversations with cops in public areas. While some citizens may not want to be recorded, talking to officers in the earshot of other members of the public is hardly a private conversation. And the precedent cited by the DA is completely off base.

In pressing this point, the District Attorney contends that special attention must be paid to the fact that "when a recording is made surreptitiously, the person being recorded unwittingly becomes a captive." She supports this argument by invoking the Supreme Court's captive-audience cases.

[...]

But, the captive-audience line of authority concerns restrictions on expression that the government may impose to protect persons from being subjected to speech they wish to avoid. The risk of being subjected to unwanted speech, of course, is not a concern here. Moreover, the only individuals who will be recorded by the Martin Plaintiffs are those in public spaces who are within earshot of police officers and choose to speak. Thus, we do not see how -- across the board -- the proposed secret recording results in "substantial privacy interests . . . being invaded in an essentially intolerable manner."

Project Veritas' case, however, fails to move the court. Veritas wanted the law invalidated in its entirety, claiming it deterred it from recording public officials and those interacting with public officials without limitation. But the examples it provided of speech is was being "deterred" from engaging in was far more limited than the relief it sought.

Project Veritas alleged in connection with this challenge that it seeks to record "government officials who are discharging their duties at or around the State House in Boston and other public spaces" in hopes of learning those officials' unvarnished thoughts about "immigration policy and deportation"; "to capture whether antifa public events and protests are peaceful, whether police or other public officials’ interactions with antifa members are non-violent," and to otherwise report on those events; and that its "journalists would have attended" "a large public event" related to "the ongoing PVA 'antifa' investigation" but for Section 99.

Thus, Project Veritas gives no indication that it intends to investigate any and every type of civil servant, no matter their function or place in the governmental hierarchy. But, if we take Project Veritas at its word and construe the term "government officials" as broadly as "officials and civil servants," that category covers everyone from an elected official to a public school teacher to a city park maintenance worker.

The court says it's not willing to completely upend the law when narrower reading might both serve the First Amendment and the state's governmental interests. This plaintiff asks the court to consider all recordings equal. The court says that's not realistic.

The concern that this disconnect renders this dispute hypothetical and abstract rather than real and concrete is compounded by the fact that the First Amendment analysis might be appreciably affected by the type of government official who would be recorded. It is hardly clear that a restriction on the recording of a mayor's speech in a public park gives rise to the same First Amendment concerns as a restriction on the recording of a grammar school teacher interacting with her students in that same locale while on a field trip or public works employees conversing while tending to a city park's grounds.

Veritas' case will go back to the court for some additional exploration -- but only if, given a third chance to write a complaint, the activist group actually finds something worthy of discussion by the court. But the ruling here is clear: recording cops in Massachusetts isn't a crime, no matter how much Massachusetts wishes it would be.

Filed Under: 1st amendment, 1st circuit, civil rights, free speech, massachusetts, recording police, simon glik