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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.

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

Excerpt from:
Massachusetts Court Says No Expectation Of Privacy In Social Media Posts Unwittingly Shared With An Undercover Cop - Techdirt

Russia just had to remind us all that its still a nuclear power. Then they told us that they were having their nuclear forces conduct drills, I guess because you never know when you might need nuclear missiles those times when you are not invading Ukraine. The Associated Press article in the Seattle Times that brought us this information was as short on details as you would expect given that everything is up in the air at this moment (the morning of Friday, Feb. 18).

I mean, when theyre talking about missiles, are those short-range missiles? Long range? Really long range? Are they tactical nuclear weapons? You know, like itty-bitty nuclear weapons? I think that would be everyones preference going into an invasion the Russians say they arent going into.

How do you drill with nuclear weapons? Does the guy who operates the missile launcher shout BANG extra loud? Do the guys forced to play the enemy have to fall down en masse? Does the missile launcher lose points if the make-believe bomb make-believe explodes upwind, so he and all the troops hes with suffer make-believe fallout?

Im dying to know what an invasion of Ukraine will do to the Dow Jones Industrial Average. So far, its been tanking because of the fear of war, but something tells me investors will rally when war is upon them, and they start calculating all the ways industry can profit from it. Once wars break out, everybody remembers how good theyve been for business. World War I was terrific for sales of heroin, Ive heard.

Theres a bunch of interesting local news. A big development for Real Change is that King County is dropping the police enforcement of the bicycle helmet laws soon in most places, including Seattle. Instead theyll try to get people to wear helmets through education and by giving helmets away for free.

It could be interpreted as a vote of no-confidence in the police. Were there not strong evidence that the enforcement of the laws has been mainly among the homeless and minorities, it probably wouldnt have come to this.

The same may be a factor in the lawsuit before the Washington Supreme Court to the effect that transit enforcement of prepaid fares is unconstitutional. I dont really understand the legal arguments on either side of the lawsuit; I never took Law 101 in college. I am kicking myself for that now. Instead, I took Philosophy 101 and learned how to tell when a ship that has had all its parts replaced is a new ship or still the old ship. (Spoiler: it doesnt matter, its completely up to you. You control the horizontal, you control the vertical not philosophers. This is the official position of the International Association of Philosophers: Dont drag us into the stupid ship problem. Weve had it up to here with the ship problem.)

I do know that the people bringing the lawsuit are mainly basing it on a Fourth Amendment argument, saying that demanding to see proof of prior payment is a form of prohibited search and seizure. The idea is, as I understand it, you can ask to see the proof of payment and you can be evicted from the transit if you dont agree to do so, but it stops there. No arrest, no fine. Just get off the bus or train. I support that idea, not that the Washington Supreme Court is going to care what I think about it. I bet they have their own thoughts about it I could never imagine.

In other local news, several local rich people are preparing to donate $10 million to solve homelessness in this area. Amazon, Starbucks, the Ballmers and the Bill and Melinda Gates Foundation, among others.So far, Im not very impressed. To have any long-term impact, that money has to be spread out over years so some of it can earn money to spend later. Theyre talking about using the money to guide people into suitable shelters. Suitable shelters are a fiction.

Homeless people need housing now. They dont need to be kicked into inappropriate shelters. New units need to be built and the new occupants need breaks on the rent. Its not rocket science, its been done over and over. Just be quick about it.

Dr. Wes is the Real Change Circulation Specialist, but, in addition to his skills with a spreadsheet, he writes this weekly column about whatever recent going-ons caught his attention. Dr. Wes has contributed to the paper since 1994. Curious about his process or have a response to one of his columns? Connect with him at drwes@realchangenews.org.

Read more of the Feb. 23-Mar. 1, 2022 issue.

See the rest here:
Suitable shelters and philosophy takes on boats are fiction - Real Change News

Two important government institutionspolice departments and the judicial systemlargely function in a black box. Police conduct most of their day-to-day activities outside the watchful eye of the public. Judges, too, typically operate in empty courtrooms with limited public oversight. But since March 2020, the sunlight on these two government bodies has started shining brighter.

The COVID-19 pandemic and the racial justice uprising following George Floyds murder provided new opportunities to observe government in action. Police body-worn cameras (BWCs) and videos taken by 17-year-old Darnella Frazier captured Floyds brutal murder at the hands of the Minneapolis Police Department, raising awareness about the importance of a robust right to record police and the need for public access to BWC recordings. Social distancing requirements forced courts to revisit decades-old policies banning recording devices in courtrooms and accelerated live audio and video technology, providing the public a peek inside courts.

For these and other reasons, the issues of access to BWC recordings, the right to record police, and cameras in courts have received heightened attention the past two years. This article addresses recent events surrounding these three important issues, the current state of the law, and what it means for the future of police transparency and court access.

Access to police body-worn camera (BWC) recordings

Access to BWC recordings has lagged behind the drastic rise in BWC use over the past decade. As of 2016, nearly half of U.S. law enforcement agencies required BWCs, and police departments in many states, including California, Colorado, and New York, are required to use them. Yet access to BWC recordings is restricted in many jurisdictions. State legislatures have enacted a wide range of laws to determine whether and when BWC recordings are released publicly.

In Texas, for example, the public can submit written requests for BWC recordings, but there are many exceptions to disclosure under the states Public Information Act, and police cannot release any portion of a recording made in a private space or a recording involving the investigation of a misdemeanor punishable by fine only and that does not lead to an arrest without permission from the person who is the subject of the recording. Other states feature a range of polices:

The Reporters Committee for Freedom of the Press and Brennan Center for Justice maintain databases showing the patchwork of BWC policies.

BWC recordings played a pivotal role in the Derek Chauvin trial, as the public and jurors saw up-close the violence of the Minneapolis Police Department. This month, BWC recordings changed the narrative surrounding the death of Amir Locke during the execution of a no-knock search warrant. Minneapolis PD initially claimed Locke had pointed his gun at officers. But BWC recordings released days later contradicted those allegations, showing that Locke did not target officers with his gun. Five days later, police arrested the actual murder suspect.

As the Amir Locke case shows, BWC recordings can be powerful tools in providing a check on police, but this oversight can only occur if the recordings are released publicly.

Right to record police

The First Amendment protects the right to publicly record the police conducting their duties in public in 61 percent of the country. Five federal appellate courtsthe First, Third, Fifth, Seventh, and Ninth Circuitshave recognized this right, while the other circuits have yet to decide the issue. This fall, the U.S. Supreme Court dodged the opportunity to adopt a national right to record police. See Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021), cert denied, No. 21-57.

During protests after the murder of George Floyd and other incidents of police violence, the public and press exercised their right to record police in record numbers. But police officers often failed to respect this right. The U.S. Press Freedom Foundation found that 80 percent of the record 438 assaults and 142 arrests of journalists in 2020 occurred during protests. As of December 16, 2021, journalists had filed 45 lawsuits against police officers across 24 cities for First and Fourth Amendment violations following arrests and assaults at protests.

Many of these lawsuits are still pending. In August 2021, five news photographers sued the New York Police Department under 42 U.S.C. 1983 for allegedly targeting them while peacefully recording police activity from a public street and sidewalk. Gray v. City of New York, No. 21-cv-06610 (S.D.N.Y.). The case is currently in the discovery phase of litigation. But other lawsuits have been resolved. In February 2022, the ACLU of Minnesota settled a lawsuit brought by journalists injured while covering protests in Minnesota. The state agreed to pay $825,000, change several policies, and cease acts of violence against journalists. A list of other lawsuits filed by journalists against police officers is maintained by the U.S. Press Freedom Foundation.

The doctrine of qualified immunity has also seen recent reforms. When bringing a civil rights lawsuit, a plaintiff must prove that the police violated a clearly established constitutional right. Because the U.S. Supreme Court has set a high bar for when a right is clearly established, state legislatures have stepped in and passed qualified immunity laws. New Mexico and Colorado, for example, have banned qualified immunity. Still, prevailing on a civil rights lawsuit remains an uphilland an expensiveendeavor.

Besides civil lawsuits, criminal charges have been brought against police for violence against the public and press during protests. For example, a Travis County grand jury indicted 19 Austin police officers on excessive force charges after around 30 protestors sustained injuries during the George Floyd protests, according to the Austin American-Statesman. Officers allegedly used beanbag ammunition and rubber bullets against protestors, causing brain injuries and broken bones. Austin officials have already agreed to a $10 million settlement relating to two of those injured protestors.

Cameras in courts

Courts have recognized a First Amendment right to access court proceedings and documents, but this right has not been extended to the use of audio or video recording devices in courts. Instead, courts have largely prohibited the public and press from recording court proceedings. For example, Federal Rule of Criminal Procedure 53 bans photography in or the broadcasting of federal criminal hearings. State courts vary on whether audio or video recordings are permitted.

Because of strict capacity limits during the COVID-19 pandemic, many courts implemented new policies offering electronic or telephonic access to parties through platforms such as Zoom and YouTube, and most courts extended that remote access to the public.

The pandemic provided the public and press a front-row seat to the Derek Chauvin trial in Minnesota. Hennepin County District Courts had traditionally only allowed cameras in criminal trials with the consent of all parties. In the Chauvin case, his attorneys consented to cameras, but prosecutors did not. But because of social distancing requirements limiting the number of people who could be in the courtroom, the court ruled that cameras should be allowed to preserve Chauvins Sixth Amendment right to a public trial and First Amendment right of access. The court wrote: The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. (quoting Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)). A coalition of media organizations banded together to implement the courts ruling. Court TV aired the trial live, while two pool print reporters and two pool broadcast reporters served as the eyes and ears of the public in the courtroom.

The pandemic also improved public access to the U.S. Supreme Court. While the Court had previously made audio recordings of oral arguments available on a delayed basis, beginning in May 2020, the Court live-streamed audio of oral arguments while the Justices and advocates participated remotely. Once in-person proceedings resumed, the Court continued to permit the live streaming of audio. The Court has not announced whether this access will remain going forward.

Link:
Racial Justice Movement and COVID-19 Pandemic Highlight Importance of Police Oversight and Access to Judicial Proceedings - Lexology

As Minnesota lawmakers and the city of Minneapolis debate new limits on no-knock search warrants following the killing of Amir Locke by a Minneapolis police officer, one point of contention has been whether to try to ban them completely or allow them in extreme or limited circumstances.

The example most often given of such an extreme circumstance: a hostage situation.

On Thursday, House Democrats detailed a bill that would sharply curb no-knock search warrants, but it does have a key exception: courts can approve a no-knock entry if there is clear evidence of significant and imminent risk of death or harm to someone confined without their consent. Democrats said the exception could allow police to use no-knock warrants in situations just short of an emergency.

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But the DFL measure drew criticism from two police chiefs one who opposes no-knock raids and one who supports them who said the carve out may be unnecessary since officers dont actually need a no-knock search warrant if someones life is in danger.

Last year, state Rep. Athena Hollins, DFL-St. Paul, introduced a bill that would have limited no-knock search warrants in situations tied to first-degree murder, hostage taking, kidnapping, terrorism or human trafficking.

Legislators instead approved a less restrictive policy that required officers to get approval from at least two people in department management before applying for a no-knock search warrant. The legislation also banned no-knock raids tied to drug possession for personal use.

State Rep. Athena Hollins

In a hearing of the House Public Safety and Criminal Justice Reform Finance and Policy Committee on Thursday, Hollins said many people have called for a complete ban on this dangerous tool. However, she said stakeholders did agree that (if) there were situations where theres an active significant harm occurring it would be appropriate for law enforcement to enter without a notice.

When Locke was killed, Minneapolis policy governing search warrants required officers to either knock and wait before entering someones home or breach a door and then announce themselves as police just before entry. But the policy also included a clause outlining what it called exceptional circumstances when announcing an officers presence would create an imminent threat of physical harm to someone that allowed police to enter a home without any type of announcement.

And while the city said officers must now knock and announce themselves before a forced entry in most circumstances, they can still enter without announcing their presence if theres an imminent threat of harm to an individual or the public, according to a city press release.

At the hearing Thursday, Mendota Heights Police Chief Kelly McCarthy, who also chairs the states police licensing and standards board, said legislators should just ban no-knock search warrants entirely.

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McCarthy said banning no-knock search warrants doesnt mean an end to forced entry on warrants, it just means anyone present for those warrants has a reasonable opportunity to comply with the commands of the officers.

Mendota Heights Police Chief Kelly McCarthy

William Blair Anderson, chief of police in St. Cloud, told the public safety committee that he opposes sharp limits on no-knock warrants. But he also objected to the exception for extreme or exigent circumstances, calling it superfluous.

If I approach a dwelling and I have all of the information thats in this language that somebody is in imminent danger of death or bodily harm I dont need a warrant of any kind, Anderson said.

Two legal experts also said police dont need a search warrant if someone is in imminent danger.

Joseph Daly, professor emeritus at Mitchell Hamline School of Law, said warrants are required to protect against unreasonable search and seizure protected by the Fourth Amendment to the U.S. Constitution. But Daly said there are many exceptions outlined by courts. One is for hot pursuit, Daly said, which is something like following a bank robber who ran away from a crime scene and into a persons house. Another is emergency situations, like a hostage situation, where responders have to rescue someone, Daly said.

Rachel Moran

On Friday, Hollins said in an interview that her bill is not aimed at having officers get a no-knock warrant in exigent circumstances.

We dont want the police to go to court and apply for a warrant if theres an active shooter shooting out of their window, Hollins said.

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But, Hollins said, there might be a narrow list of situations that might not be considered exigent circumstances so an officer could not enter immediately without announcing themselves where police could instead get a no-knock search warrant under her legislation. And we thought that in these circumstances if there was any chance that would not be an exigent circumstance we would still want them to go in front of a judge and ask for a warrant, she said.

For instance, Hollins said if human trafficking is happening and its a known location and we know the actors and who is going in and out but we would still prefer there to be a no-knock warrant in that situation.

And where somebody might be put in great bodily harm but were not really sure when exactly that would happen, Hollins said.

She also said in really extreme cases like a sort of Waco situation where we know this is happening, we know this is potentially deadly even for the people inside of that location and we want to go in and we dont want to have to knock to do that. (In the 1993 Waco, Texas case, federal agents raided a compound belonging to the Branch Davidian religious group, which was suspected of stockpiling illegal weapons, though there were also concerns for child welfare.)

Hollins also said political reality was at play: some House legislators did not feel comfortable with a bill banning no-knock search warrants with no exceptions.

Hollins no-knock measure was approved by the public safety committee on Thursday on a 10-9 vote that was largely along party lines. DFL Rep. John Huot of Rosemount voted no, and was the only legislator to break from their party. The Republican-led Senate has so far been skeptical of major restrictions to no-knock search warrants, meaning the bill may not gain traction if it passes the House.

Hollins also said while her bill limits search warrants, which are aimed at finding evidence of a crime, arrest warrants are governed by a different Minnesota statute that is not amended by her legislation.

Hollins said her understanding is that its possible police could still be granted a no-knock arrest warrant without such risk of imminent harm if her legislation passed.

Moran said arrest warrants are generally governed by the same standards as search warrants. Officers must get one from a judge and must similarly explain their rationale. She also said search warrants can cover situations where the search is for a person, meaning Hollins bill could apply when officers are arresting people.

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Daly, the Hamline Mitchell professor, also said search warrants and arrest warrants are often applied for at the same home, meaning sometimes the regulations under Hollins bill might apply. Theyre asking we want to go in and seize him, arrest him, and we also want to because hes a drug dealer and we want to search his house, Daly said.

Still, Moran said of Hollins bill: That is a possible concern, that it doesnt prevent no-knock entries into homes for the purpose of arrest.

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Why the Legislature is considering carving out exceptions for no-knock entries that already exist - MinnPost

The Fourth Amendment, or Amendment IV of the United States Constitution is the section of the Bill of Rights that protects people from being searched or having their things taken away from them without any good reason.

If the government or any law enforcement official wants to do that, he or she must have a very good reason to do that and must get permission to perform the search from a judge.

The fourth amendment was introduced into the Constitution of the United States as a part of the Bill of Rights on September 5, 1789 and was ratified or voted four by three fourths of the states on December 15, 1791.

The text of the Fourth Amendment which is found in the United States Constitution and the Bill of Rights is the following:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In Colonial America, laws were written in order to help the English earn money on customs. The justices of the peace would do this by writing general warrants, which allowed general search and seizure to happen. Massachusetts wrote a law in 1756 that banned these warrants, because tax collectors were abusing their powers by searching the colonists homes for illegal goods.

These general warrants allowed any messenger or officer to search a suspected place without any evidence. It also allowed them to seize people without even saying what they did wrong or showing evidence of their wrongdoings. Virginia also banned the use of general warrants later due to other fears. These actions later led to the addition of the Fourth Amendment in the Bill of Rights.

Today, the Fourth Amendment means that in order for a police officer to search and arrest someone, he or she will need to get permission or a warrant to do so from a judge. In order to get a warrant, the police officer must have evidence or probable cause that supports it. The police officer, or whoever has the evidence, must swear that it is true to his or her knowledge.

The Fourth Amendment applies to the government, but not any searches done by organizations or people who are not doing it for the government.

Some searches can be done without a warrant without breaking the law, like when there is a good reason to think that a crime is happening.

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4TH AMENDMENT (Fourth Amendment) Summary, Definition ...