Indictments found and returned in the
Superior Court Department on July 18, 2017, and August 16, 2018.
A pretrial motion to suppress evidence was
heard by Diane C. Freniere, J., and a conditional plea was accepted by Jeffrey
A. Locke, J.
The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
Suzanne Renaud for the defendant.
Ian MacLean, Assistant District Attorney
(Caitlin Fitzgerald, Assistant District Attorney, also present) for the
Sara E. Silva, for Massachusetts
Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
GAZIANO, J. In this case we confront the novel question
whether the defendant had a constitutionally protected expectation of privacy
in social media content that he shared, albeit unknowingly, with an undercover
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.
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. 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 bright-line rules.
Rather, as with other questions of a reasonable expectation of privacy,
each case must be resolved by carefully considering the totality of the
circumstances, bearing in mind the privacy interests that the Fourth Amendment
to the United States Constitution and art. 14 of the Massachusetts Declaration
of Rights were designed to protect.
In the circumstances here, we conclude
that the defendant did not have a reasonable expectation of privacy in the
content that he shared with the undercover officer, and thus that no search in
the constitutional sense occurred.
Accordingly, we affirm the denial of the defendant's motion to suppress.
Background. a. Snapchat.
In order to analyze the particular circumstances in this case, where the
defendant's arguments rely upon properties of the specific technology employed,
some understanding of Snapchat, the social media application the defendant used
to publish the video recordings at issue, is necessary. Snapchat allows users to share text,
photographs, and video recordings, collectively known as
"snaps." See B.L. v. Mahanoy
Area Sch. Dist., 964 F.3d 170, 175 n.1 (3d Cir. 2020), aff'd, 141 S. Ct. 2038
(2021). Snaps may be shared either as
"direct snaps" or as "stories." See Note, #NoFilter: A Critical Look at Physicians Sharing Patient
Information on Social Media, 16 Ind. Health L. Rev. 325, 329 (2019). Direct snaps are sent directly to another
user's inbox, remain visible for ten seconds or less after they are opened, and
can be viewed only once. See Magill,
Discovering Snapchat: How Will Snapchat
and Similar Self-Destructing Social Media Applications Affect Relevance and
Spoliation Under the Federal Rules of Civil Procedure?, 9 Charleston L. Rev.
365, 372-373 (2015) (Magill). Stories,
on the other hand, by default are shared with a larger audience, remain visible
for up to twenty-four hours, and can be continuously replayed. Id. at 374.
Either type of snap can be preserved if the recipient takes a screenshot
or otherwise records the content by some other technology external to
Snapchat. Id. at 373.
Snapchat accounts can be configured as
either "public" or "private." See J.E. Grenig & W.C. Gleisner, III,
eDiscovery and Digital Evidence § 3:39 (Nov. 2021 update). When users initially create a Snapchat
account, by default it is private, and the user must explicitly choose to make
it public. See Ceres, How to Use
Snapchat: Critical Tips for New Users,
Wired, Oct. 2, 2018,
Stories posted to public accounts are
visible to all members of the public, whereas stories posted to private
accounts by default are visible only to individuals that the user chooses to
add as "friends." Id. A user can add friends in one of three
ways: "(1) by allowing Snapchat to
access his or her phone's address book and add users who have registered using
that contact information; (2) by manually inputting his or her friends'
usernames; or (3) by approving other users who have requested to add the
user." Magill, 9 Charleston L. Rev.
Factual background. We summarize
the facts as found by the motion judge, "supplemented by evidence in the
record that is uncontroverted and that was implicitly credited by the
judge" (citation omitted). See
Commonwealth v. Leslie, 477 Mass. 48, 49 (2017), quoting Commonwealth v.
Warren, 475 Mass. 530, 531 (2016).
Sometime in April of 2017, Boston police Officer Joseph Connolly sent a
friend request to a private Snapchat account belonging to the username
"Frio Fresh." Connolly sent
the request from an "undercover" account that he created to aid in
his investigations; the username for that account was a pseudonym chosen at
"random," without regard for anyone Connolly "thought [he] might
be following." The "profile
picture" associated with the account was a default picture assigned by
Once Frio Fresh accepted Connolly's friend
request, Connolly was able to view stories posted to that account and would
have been able to receive any direct snaps sent to him. After viewing multiple video recordings,
Connolly came to believe that the Frio Fresh account belonged to the
defendant. Connolly was familiar with
the defendant through his work with the youth violence strike force and knew
that the defendant was prohibited from carrying a firearm due to prior criminal
On May 10, 2017, Connolly viewed a story
on the Frio Fresh account that depicted an individual from the chest down
wearing distinctive clothing and displaying what appeared to be a silver
revolver. Approximately thirty minutes
later, Connolly viewed another story on the account that showed the defendant
inside what Connolly recognized as a weightlifting gym in the Dorchester
section of Boston. Using a separate
device, Connolly made a recording of the first story but was unable to record
the second before it was deleted. He
then notified other members of the youth violence strike force of his
discovery, and officers established surveillance near the gym. Shortly thereafter, officers saw the
defendant in that area, wearing the same distinctive clothing as the individual
in the Snapchat recordings. They pursued
and eventually seized the defendant, recovering a revolver from his right pants
pocket. The defendant was arrested and
charged with multiple firearms offenses.
Arguing that Connolly's actions
effectuated an unconstitutional search in violation of the Fourth Amendment and
art. 14, the defendant sought to suppress the video recordings and all evidence
derived from them. At an evidentiary
hearing on the motion to suppress, both Connolly and the defendant
testified. The motion judge concluded
that the defendant had not established that he had had a subjective expectation
of privacy in the video recordings. She
also decided that, even if the defendant had had a subjective expectation of
privacy in those recordings, such an expectation would not have been
reasonable. Accordingly, the judge
concluded that no search in the constitutional sense occurred, and denied the
defendant's motion. The defendant
subsequently entered into a conditional plea arrangement, reserving his right
to pursue an appeal from the denial of his motion to suppress.
Privacy interests. The Fourth
Amendment and art. 14 guarantee the right to be free from unreasonable
searches. Commonwealth v. Almonor, 482
Mass. 35, 40 (2019). In interpreting
these constitutional protections, we bear in mind "the circumstances under
which [they were] framed, the causes leading to [their] adoption, the
imperfections hoped to be remedied, and the ends designed to be
accomplished." Jenkins v. Chief
Justice of the Dist. Court Dep't, 416 Mass. 221, 229 (1993), quoting General
Outdoor Advertising Co. v. Department of Pub. Works, 289 Mass. 149, 158
(1935). See United States v. Jones, 565
U.S. 400, 405-406 (2012) (considering historical purpose of Fourth Amendment in
determining whether search occurred). As
society continues to change in the face of evolving technologies, we seek to
assure the same level of privacy against government intrusion that existed when
the Fourth Amendment and art. 14 were adopted.
See Commonwealth v. McCarthy, 484 Mass. 493, 498 (2020).
Given the substantial differences between
the physical world in which our constitutions were adopted and the electronic
world that we now navigate, this task is delicate and at times fraught. See Jones, 565 U.S. at 420 (Alito, J.,
concurring) ("it is almost impossible to think of late-18th-century situations
that are analogous to" electronic surveillance); Commonwealth v. Mora, 485
Mass. 360, 374 (2020) (same). We also
are mindful that we cannot know the ways in which technology inevitably will
change in years to come, and we do not wish to "embarrass the future"
by adopting bright-line rules or drawing analogies that might prove ill fitting
for the technology of tomorrow. See
Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944). Therefore, in undertaking an analysis
involving purported electronic searches, we avoid mechanical applications of
canons designed for the physical world, and begin by returning to the
founding-era principles that have informed Fourth Amendment and art. 14
jurisprudence for over two centuries.
See, e.g., McCarthy, 484 Mass. at 498-500 (analyzing Fourth Amendment
and art. 14 protections in light of "the underlying purposes of both
art. 14 and the Fourth Amendment").
Although the word "privacy" does
not appear in either the Federal Constitution or our State Constitution, the
drafters of both documents undoubtedly held special regard for individual
privacy. See Boyd v. United States, 116
U.S. 616, 630 (1886) (Fourth Amendment drafters sought to preserve "the
privacies of life"); Commonwealth v. Blood, 400 Mass. 61, 69-70 (1987)
(drafters of art. 14 sought to protect "the right to be let
alone"). Concerns over privacy,
particularly privacy in communications, were "reflected in virtually every
complaint levied by the colonists against King George III," and precipitated
the American Revolution. See F.S. Lane,
American Privacy: The 400-Year History
of Our Most Contested Right 3 (2009).
The founders' deep concern for maintaining
privacy against governmental intrusion eventually was enshrined in the Fourth Amendment
and art. 14. See Fisher v. United
States, 425 U.S. 391, 400 (1976) ("The Framers addressed the subject of
personal privacy directly in the Fourth Amendment"); Commonwealth v.
Sbordone, 424 Mass. 802, 810 (1997) (art. 14 was "intended to protect
individual privacy interests").
Both provisions protect against governmental intrusion so that
individuals may "forge the private connections and freely exchange the
ideas that form the bedrock of a civil society." Mora, 485 Mass. at 371. See Berger v. New York, 388 U.S. 41, 49
(1967) (intrusions into individual privacy have been considered
"subversive of all the comforts of society" since the late Eighteenth
Century); Lane, supra at 16 ("the evident concern for preserving autonomy
and freedom [in the Constitution] was the functional equivalent of protecting
personal privacy"). To this end,
the Fourth Amendment and art. 14 serve the important functions of ensuring
conversational and associational privacy.
Conversational privacy protects private
conversations from unreasonable government surveillance. See United States v. United States Dist.
Court for the E. Dist. of Mich., 407 U.S. 297, 313 (1972); Blood, 400 Mass. at
69 ("the right to bring thoughts and emotions forth from the self in
company with others doing likewise" is protected by art. 14). Conversational privacy serves not only the
Fourth Amendment's and art. 14's interests in "secur[ing] the
privacies of life against arbitrary power," McCarthy, 484 Mass. at 498,
quoting Almonor, 482 Mass. at 53 (Lenk, J., concurring), but also the interests
protected by the First Amendment to the United States Constitution and
art. 16 of the Massachusetts Declaration of rights in enabling and
guarding free speech, see First Amendment (protecting "freedom of speech");
art. 16 ("The right of free speech shall not be abridged"). See Bartnicki v. Vopper, 532 U.S. 514, 533
(2001). Indeed, "[i]n a democratic
society privacy of communication is essential if citizens are to think and act
creatively and constructively."
Id., quoting President's Commission on Law Enforcement and
Administration of Justice, The Challenge of Crime in a Free Society 202 (1967)
(President's Commission). The erosion of
conversational privacy therefore risks imposing a "seriously inhibiting
effect upon the willingness to voice critical and constructive
ideas." Bartnicki, supra, quoting
President's Commission, supra.
Relatedly, associational privacy protects
the ability to develop and maintain personal relationships. See Roberts v. United States Jaycees, 468
U.S. 609, 617-618 (1984) ("choices to enter into and maintain certain
intimate human relationships must be secured against undue intrusion by the
State"); Blood, 400 Mass. at 69 ("the right to be known to others and
to know them, and thus to be whole as a free member of a free society" is
protected by art. 14). Given the
"vital relationship between freedom to associate and privacy in one's
associations," associational privacy is necessary in order for the
associations protected by the First Amendment and art. 19 of the
Massachusetts Declaration of Rights to flourish. See First Amendment (protecting freedom of
association); art. 19 of the Massachusetts Declaration of Rights (protecting
peaceable right to assemble). See also
National Ass'n for the Advancement of Colored People v. Alabama, 357 U.S. 449,
462 (1958); Society of Jesus of New England v. Commonwealth, 441 Mass. 662, 675
(2004), quoting Attorney Gen. v. Bailey, 386 Mass. 367, 380, cert. denied, 459
U.S. 970 (1982) ("The right to freedom of association [under art. 19]
necessarily encompasses the right to 'privacy in one's
associations' . . .").
Associational privacy "safeguards the ability independently to
define one's identity" by relating to and engaging with others. Roberts, supra at 618-619. Protection of associational privacy also
plays a crucial role in maintaining a democracy; for instance, it enables
individuals to amplify their voices by joining with like-minded others, and
encourages civic participation by reducing isolation without fear of government
interference or reprisal. See Fisher,
Guilt by Expressive Association:
Political Profiling, Surveillance and the Privacy of Groups, 46 Ariz. L.
Rev. 621, 639 (2004). Accordingly, both
the Federal and State Constitutions "must afford the formation and
preservation of certain kinds of highly personal relationships a substantial
measure of sanctuary from unjustified interference by the State." Roberts, supra at 618. See Blood, supra.
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. See Jones, 565 U.S. at 416 (Sotomayor,
J., concurring) ("Awareness that the government may be watching chills
associational and expressive freedoms"); Bedi, Social Networks, Government
Surveillance, and the Fourth Amendment Mosaic Theory, 94 B.U. L. Rev. 1809,
1851 (2014) ("Allowing [government monitoring of an individual] could
deter an individual from exercising [his or] her rights to engage in various
associational activities -- whether they are social, professional,
political, or religious -- for fear the government may be
watching"). Accordingly, the
constitutional solicitude for conversational and associational privacy extends
to the realm of social media.
Discussion. The defendant
maintains that Connolly's conduct in viewing and recording the Snapchat stories
constituted an unreasonable search in violation of the Fourth Amendment and
art. 14. He argues that each of the
judge's findings about his subjective expectations of privacy was error
unsupported by the record, and that he did retain a subjective expectation of
privacy in his Snapchat video recordings.
The defendant also argues that, with respect to an objectively
reasonable expectation of privacy, the court should adopt the reasoning of
United States v. Chavez, 423 F. Supp. 3d 194, 203-205 (W.D.N.C. 2019), and hold
that where a social media account has been set up as "private," its
owner per se enjoys a reasonable expectation of privacy in content posted to
that account. We review the defendant's
claims under "the more stringent standards of art. 14, with the
understanding that, if these standards are met, so too are those of the Fourth
Amendment." Garcia v. Commonwealth,
486 Mass. 341, 349 (2020), quoting Commonwealth v. Tapia, 463 Mass. 721, 729
Standard of review. "In
reviewing a decision on a motion to suppress, we accept the judge's subsidiary
findings of fact absent clear error but conduct an independent review of [the]
ultimate findings and conclusions of law" (quotations omitted). Commonwealth v. Ramos, 470 Mass. 740, 742
(2015), quoting Commonwealth v. Colon, 449 Mass. 207, 214, cert. denied, 552
U.S. 1079 (2007). "A finding is clearly
erroneous only when, although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a
mistake has been committed" (quotations omitted). Demoulas v. Demoulas Super Mkts., Inc., 424
Mass. 501, 509 (1997), quoting Building Inspector of Lancaster v. Sanderson,
372 Mass. 157, 160 (1977). With respect
to conclusions of law, "[o]ur duty is to make an independent determination
of the correctness of the judge's application of constitutional principles to
the facts as found." Commonwealth
v. Bostock, 450 Mass. 616, 619 (2008), quoting Commonwealth v. Mercado, 422
Mass. 367, 369 (1996).
Whether a search occurred. To be
entitled to the protections against government searches under art. 14, an
individual must demonstrate that the challenged government conduct amounted to
a search in the constitutional sense.
Commonwealth v. Porter P., 456 Mass. 254, 259 (2010). Under the reasonable expectation of privacy
test, "the government performs a search when it intrudes on a 'subjective
expectation of privacy . . . that society is prepared to
recognize as reasonable.'" Garcia,
486 Mass. at 350, quoting Commonwealth v. Odgren, 483 Mass. 41, 58 (2019). Thus, "a defendant must prove both a subjective
and an objective expectation of privacy."
Commonwealth v. Delgado-Rivera, 487 Mass. 551, 556 (2021), cert. denied,
U.S. Supreme Ct., No. 21-6546 (2022).
In evaluating the existence of a
subjective expectation of privacy, a reviewing court considers "whether
the individual, by his [or her] conduct, has exhibited an actual expectation of
privacy." Bond v. United States,
529 U.S. 334, 338 (2000). See Mora, 485
Mass. at 366-367 (employing same standard to evaluate subjective expectation of
privacy under art. 14). To have a
subjective expectation of privacy, one must perceive or otherwise genuinely
believe that the object of the alleged search is private. Commonwealth v. Johnson, 481 Mass. 710, 721,
cert. denied, 140 S. Ct. 247 (2019). See
Commonwealth v. Molina, 459 Mass. 819, 830 (2011) (Botsford, J., dissenting),
citing Katz v. United States, 389 U.S. 347, 351 (1967) ("An expectation of
privacy signifies a person's anticipation, belief, or understanding that he may
preserve a particular place as private").
See also Black's Law Dictionary 1723 (11th ed. 2019) (defining
"subjective" as "[b]ased on an individual's perceptions,
feelings, or intentions"). Thus,
the inquiry turns in part on what an individual knows; that is, whether the
individual was subjectively aware of the presence or absence of protections in
place to preserve his or her privacy.
See, e.g., McCarthy, 484 Mass. at 497 n.5 (subjective expectation of
privacy existed where defendant chose to "meet his codefendant in a quiet
residential area"). Compare Odgren,
483 Mass. at 57-58 (no subjective expectation of privacy in telephone calls
made from prison where defendant had "effective notice that his
calls . . . were subject to monitoring and recording");
Matter of a Grand Jury Subpoena, 454 Mass. 685, 688-689 (2009) (no subjective
expectation of privacy in telephone calls from prison where inmates were on
notice that calls were recorded).
As to whether there was an objectively
reasonable expectation of privacy, "[w]hat is reasonable depends upon all
of the circumstances surrounding the search or seizure and the nature of the
search or seizure itself."
Delgado-Rivera, 487 Mass. at 560, quoting United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985).
Relevant factors in this determination include, inter alia, the
precautions the individual took to protect his or her privacy; the character of
the item searched; and the nature of the government intrusion. See Delgado-Rivera, supra; Commonwealth v.
Krisco Corp., 421 Mass. 37, 42 (1995).
While occasionally one factor may weigh so heavily that it offsets any contrary
factors, ordinarily no individual factor is determinative. Porter P., 456 Mass. at 259.
Application. In deciding that the
defendant in this case had not demonstrated a subjective expectation of privacy
in his Snapchat video recordings, the judge relied upon her finding that the
defendant was not "entirely aware of what his privacy settings
were." At the evidentiary hearing,
the defendant testified inconsistently about those settings, initially
asserting that he knew his account was private, then explaining that some of
his prior stories had been posted so that everyone could see them, but that the
video recordings at issue had been posted privately, and also stating that he
was "not too sure" what his privacy settings were. The judge concluded that the defendant's
"testimony on this point did not persuade" her, given his
inconsistent statements about those settings.
In addition, notwithstanding the
defendant's testimony that he would only accept as friends people that he knew,
the judge observed that she could not "reconcile this testimony with that
of [Connolly] who testified that he picked a user name that was not real, and
that the image associated with the undercover account was a default assigned by
[S]napchat"; thus, if the defendant had any policy with respect to those
whom he permitted to become Snapchat friends, he did not follow his own policy
in accepting Connolly's friend request.
The judge also determined that the defendant did not have a reasonable
expectation of privacy in the video recordings he posted on Snapchat because
"[t]he nature of [S]napchat is sharing videos with other people, and even
if the defendant only sent it to the people he says were following him, one
hundred people by the defendant's own estimation, that was
not . . . a reasonable preservation of his privacy in the
Subjective expectation of privacy.
The defendant argues that, even if he was unaware of his privacy
settings, we nonetheless should infer that he had a subjective expectation of
privacy by adopting the approach taken in Chavez, 423 F. Supp. 3d at
203-205. In that case, the United States
District Court for the Western District of North Carolina determined that a
defendant had a subjective expectation of privacy in the content of his social
media because his social media account was set to be private rather than
public. Id. The defendant asserts that, similarly, he
enjoyed a subjective expectation of privacy in his video recordings because he
maintained a private Snapchat account.
The defendant in Chavez, 423 F. Supp. 3d
at 203-205, undisputedly was aware of the privacy settings applicable to his
account. He stated unequivocally that
his social media account was private, and also explained to the judge why he
chose those particular settings. Id. at
202 ("At the hearing, Defendant testified that he implemented [restricted
access to his social media content] because there was some content that he did
not want 'a member of the general public . . . who was not a
[social media] Friend' to see").
Although the fact that the settings were private was part of the judge's
analysis, the judge did not base his conclusion solely on the account's actual
privacy settings, but, rather, also relied on the defendant's awareness of those
settings and the deliberate choices he made in setting them.
Here, by contrast, the judge found, and
the record supports, that the defendant was unaware of his privacy settings. While we at times have inferred a subjective
expectation of privacy where an individual purposefully engaged in conduct
aimed at ensuring privacy, see Mora, 485 Mass. at 366 (recognizing that
"we have sometimes inferred an expectation of privacy"); McCarthy,
484 Mass. at 497 n.5 ("We infer from the undisputed
record . . . that the defendant manifested a subjective
expectation of privacy in his location by choosing to meet his codefendant in a
quiet residential area"), we are unable to do so where an individual was
unaware of these protections. Therefore,
the defendant did not satisfy his burden of demonstrating a subjective
expectation of privacy.
Objective expectation of privacy.
To determine whether an expectation of privacy is reasonable, we
consider the totality of the circumstances in the particular situation. Relevant factors in that analysis include
whether the individual took ordinary precautions to protect his or her privacy,
the character of the object searched, and the nature of the government
intrusion. See Commonwealth v. Welch,
487 Mass. 425, 433 (2021); Commonwealth v. Berry, 420 Mass. 95, 106 n.9 (1995).
With respect to ordinary protective
measures, we consider any protective measures an individual instituted to
ensure that the object of the search remained within the individual's control,
such that he or she could limit its exposure to others. See Delgado-Rivera, 487 Mass. at 561. In evaluating the character of the object
searched, we analyze whether a defendant "controlled access to [the
object] as well as whether [it] was freely accessible to others." Krisco Corp., 421 Mass. at 42. As to the nature of the government intrusion,
we consider the manner in which the government obtained the information sought
to be suppressed. Almonor, 482 Mass. at
42 n.11 ("the nature of the challenged governmental conduct -- i.e.,
what the government does -- has always been relevant to whether such
conduct implicates reasonable expectations of privacy"). Critical to this analysis is "whether
the person conducting the surveillance was entitled to be where he [or she]
was," Commonwealth v. Panetti, 406 Mass. 230, 232 (1989), including
whether the government obtained "express or implied authorization" to
be there, Almonor, supra at 43.
As the defendant points out, some
protective measures were in place with respect to his Snapchat account that
could support a reasonable expectation of privacy. The defendant operated a private account
under a pseudonym (Frio Fresh), and friends (possible recipients) had to be
added deliberately. And, notably,
particular features of Snapchat, including the ephemeral direct snaps and the
one-day stories, preserve a certain level of privacy by design. These features allowed the defendant to
retain a certain level of control over the content he posted, which gave rise
to some level of privacy.
While the defendant's stories were less
ephemeral than his direct snaps, he retained a greater level of control over
them than he would have over an ordinary text message, because the stories were
only temporarily available to the intended recipient and were more difficult to
disburse to others. By posting the video
recordings to a Snapchat story, the defendant necessarily ensured that the
recordings would be deleted twenty-four hours later. See Magill, 9 Charleston L. Rev. at 374. Compare Delgado-Rivera, 487 Mass. at 561 n.7
(recognizing possibility that "ephemeral messaging" could present
situation different from sending of text messages in that case). In addition, the defendant retained the
ability to delete the recordings manually even before their automatic
twenty-four hour expiration.
Furthermore, the Snapchat stories were not
as easily "disbursable by the intended recipient" as a text
message. See Delgado-Rivera, 487 Mass.
at 561. To disburse a Snapchat story, a
recipient would have to decide to do so during the relatively brief period
before the video recording was deleted, a timeline that is not applicable to
those seeking to preserve a delivered text message or letter, and would have to
use some external process other than Snapchat to make and store the copy before
sending it onward. Thus, if a text
message is akin to a letter, a Snapchat story is akin to a letter written in
disappearing ink. In this way, too, the
defendant retained a level of control over his stories. In sum, the defendant's relative level of
control over the video recordings, combined with his other protective measures,
weighs in favor of his argument that he had a reasonable expectation of privacy
in the posted stories.
The circumstances here thus are in
contrast to the situation in Delgado-Rivera, 487 Mass. at 560, 564, where we
concluded that a defendant had no reasonable expectation of privacy in his sent
text messages, which police recovered from the intended recipient's device. Much like letters, those text messages became
"beyond the control of the sender" once they were delivered, because
they were "lastingly available to" and "instantaneously
disbursable by the intended recipient."
Id. at 561. We reasoned that
the defendant's "necessary relinquishment of control" over the
messages at issue was "determinative with respect to whether [he] had a
reasonable expectation of privacy in the delivered text messages." Id. at 560.
Without question, in this case the
defendant's Snapchat stories were posted so as to be "[viewed] routinely
by others," namely, his approximately one hundred Snapchat friends
(citation omitted). See Krisco Corp.,
421 Mass. at 42. Nonetheless, that the
defendant electronically shared his stories with others itself is not
determinative in these circumstances.
Although we have held that individuals do not have a reasonable
expectation of privacy in certain types of records they voluntarily conveyed to
third parties, see, e.g., Smith v. Maryland, 442 U.S. 735, 742-743 (1979)
(telephone call logs conveyed to telephone company); United States v. Miller,
425 U.S. 435, 444 (1976) (bank records provided to bank employees);
Commonwealth v. Vinnie, 428 Mass. 161, 178, cert. denied, 525 U.S. 1007 (1998)
(telephone billing records conveyed to telephone company); Commonwealth v.
Cote, 407 Mass. 827, 835-836 (1990) (telephone answering service message
records), we have declined to extend this reasoning to a number of broader
circumstances, see Commonwealth v. Augustine, 467 Mass. 230, 251 (2014), S.C.,
470 Mass. 837 and 472 Mass. 448 (2015) (cell phone user retains reasonable
expectation of privacy in cell site location information [CSLI] conveyed to
cell phone companies because such information is "substantively different
from the types of information and records contemplated by Smith and
Miller"). Given the constitutional
regard for conversational and associational privacy, the types of information
and records contemplated by Smith, supra, and Miller, supra, as well as Vinnie,
supra, and Cote, supra, also are categorically different from social media
conversations in a constitutionally significant way.
We recognize that a majority of courts to
have considered the issue of the expectation of privacy in social media content
have relied exclusively upon the third-party doctrine, and have concluded that,
as the Commonwealth argues, once any content is posted on social media, no
reasonable expectation of privacy remains.
We continue to be of the view, however, that a categorical rule that
individuals do not maintain a reasonable expectation of privacy in information
provided to third parties through electronic sources is "ill suited to the
digital age, in which people reveal a great deal of information about
themselves to third parties in the course of carrying out mundane tasks"
(citation omitted). See Augustine, 467
Mass. at 252 n.35, quoting Jones, 565 U.S. at 417 (Sotomayor, J.,
concurring). Compare Chavez, 423 F.
Supp. at 205 ("In sum, Defendant manifested a subjective expectation of
privacy in his non-public Facebook content that society is prepared to
recognize as reasonable. As such,
Defendant's legitimate expectation of privacy is protected by the Fourth
Amendment"). Consequently, although
an individual's choice to share social media content with others diminishes the
individual's privacy interests, it does not per se defeat them. See Carpenter v. United States, 138 S. Ct.
2206, 2219 (2018), quoting Riley v. California, 573 U.S. 373, 392 (2014)
("the fact of 'diminished privacy interests does not mean that the Fourth
Amendment falls out of the picture entirely'"). See also Commonwealth v. Feliz, 481 Mass.
689, 701 (2019), S.C., 486 Mass. 510 (2020), citing Carpenter, supra.
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. See Krisco
Corp., 421 Mass. at 42. 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. See Commonwealth
v. D'Onofrio, 396 Mass. 711, 717 (1986) (no reasonable expectation of privacy
in club open only to members and guests where owners did not "corroborate
the claims of guest status made by persons seeking admission to the
Once the possibility of an undercover
officer being able to view virtually all of the defendant's Snapchat content
materialized, the defendant's privacy interest was further diminished. See, e.g., Commonwealth v. Price, 408 Mass.
668, 672-673 (1990) (no reasonable expectation of privacy in videotaped
interaction with undercover police officer posing as drug buyer). See also Commonwealth v. DiToro, 51 Mass.
App. Ct. 191, 197 (2001) (no reasonable expectation of privacy in contents of
bag voluntarily displayed to undercover officer); Commonwealth v. Collado, 42
Mass. App. Ct. 464, 469 (1997), S.C., 426 Mass. 675 (1998) (no reasonable
expectation of privacy in communications with undercover officer where there
was no indication that defendant and officer were "trusted friends"). Otherwise put, there is no constitutional
remedy for "a wrongdoer's [mistaken] belief that a person to whom he
voluntarily confides his wrongdoing" is not a government agent. Hoffa v. United States, 385 U.S. 293, 302
The nature of the government intrusion in
this case further counsels against a determination that the defendant retained
an objectively reasonable expectation of privacy in his video recordings,
because the asserted government intrusion took place with the defendant's
permission. This stands in contrast
to our conclusion that "pinging" a cell phone violated a
reasonable expectation of privacy in part because pings are "initiated and
effectively controlled by the police . . . without any express
or implied authorization or other involvement by the individual cell phone
user." Almonor, 482 Mass. at
43. See Carpenter, 138 S. Ct. at 2220
(reasonable expectation of privacy in CSLI because "a cell phone logs a
cell-site record by dint of its operation, without any affirmative act on the
part of the user beyond powering up"); Augustine, 467 Mass. at 249-251,
255 (reasonable expectation of privacy in CSLI because CSLI is "purely a
function and product of cellular telephone technology" that is conveyed to
cellular service provider without any action or consent by user).
Here, the challenged recordings
"effectively [had been] controlled by [the defendant]" and were made
accessible to the undercover officer only with the defendant's "express or
implied authorization." Almonor,
482 Mass. at 43. 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 defendant maintains that his
"permission" should not be considered valid, given that it was
obtained via a ruse. That Connolly did
not reveal his true identity to the defendant, however, does not vitiate the
permission the defendant extended to him.
See Hoffa, 385 U.S. at 300, 303 (rejecting argument that informant's
"failure to disclose his role as a government informer vitiated the
consent that the [defendant] gave to [him]"); Commonwealth v. Sepulveda,
406 Mass. 180, 182 (1989) ("It makes no difference that the defendant's
consent to police entry was obtained by a ruse"). See also 4 W.R. LaFave, Search and Seizure
§ 8.2(m) (6th ed. 2021) ("consent is not vitiated merely because it
would not have been given but for the nondisclosure . . . of the
other person's identity as a police officer or police agent"). Indeed, to hold otherwise would require
police officers to "identify themselves as [such] when they investigate
criminal activity," thus rendering "virtually all undercover
work" unconstitutional. United
States v. Butler, 405 Fed. Appx. 652, 656 (3d Cir. 2010). This we decline to do. See Commonwealth v. Garcia, 421 Mass. 686,
692 (1996) ("undercover police work is a legitimate investigative
motion to suppress affirmed.
 We acknowledge the amicus brief
submitted by the Massachusetts Association of Criminal Defense Lawyers in
support of the defendant.
 "A 'screenshot' is a recorded
image of the visible items displayed on a computer monitor [or cell phone
screen]." TrueBeginnings, LLC v.
Spark Network Servs., Inc., 631 F. Supp. 2d 849, 851 n.1 (N.D. Tex. 2009).
 Social media "friends" are
part of one another's social media network and are able to interact with each
other electronically. See S.J. Drucker
& G. Gumpert, Regulating Convergence 73 (2010). Friends are able to view each other's private
content and directly interact via the social media application. See In re A.G., 58 Cal. App. 5th 647, 651
 Even where an account is private, a
user may opt to make particular stories available to the public. Hamburger, Snapchat's Next Big Thing: 'Stories' That Don't Just Disappear, The
Verge, Oct. 3, 2013, https://www.theverge.com/2013/10/3
[https://perma.cc/TVU5-5XTG]. Users also
can further restrict their private stories so that the stories are visible only
to specific friends. Nield, How to
Control the Privacy of Your Social Media Posts, Wired, Oct. 20, 2019,
 Although the judge did not expressly
conclude that the defendant's account was private, the evidence the judge
credited established as much.
"Appellate courts may supplement a judge's finding of facts if the
evidence is uncontroverted and undisputed and where the judge explicitly or
implicitly credited the witness's testimony." Commonwealth v. Isaiah I., 448 Mass. 334, 337
(2007), S.C., 450 Mass. 818 (2008).
Here, Connolly's "uncontroverted and undisputed" testimony,
which the judge explicitly credited, established that Connolly was unable to
view the defendant's postings until the defendant accepted his friend
request. Had the defendant's account
been public, Connolly would have been able to view the content without the need
for the defendant to accept a friend request.
See J.E. Grenig & W.C. Gleisner, III, eDiscovery and Digital
Evidence § 3:39 (Nov. 2021 update).
The conclusion that the defendant's account in fact was private is not
inconsistent with the judge's finding that the defendant was unaware of his
privacy settings. See note 14 and part
 A profile picture is an image that is
associated with and used to identify a particular social media user's
account. See Griffith, Understanding and
Authenticating Evidence from Social Networking Sites, 7 Wash. J. L. Tech. &
Arts 209, 212, 217 (2012). A user's
profile picture generally accompanies any content that he or she posts. See The Katiroll Co. vs. Kati Roll &
Platters, Inc., U.S. Dist. Ct., No. 10-3620 (GEB) (D.N.J. Aug. 3, 2011).
 At the evidentiary hearing, the
defendant conceded that he owned the Frio Fresh account.
 The defendant was indicted on charges
of possession of a firearm without a license, G. L. c. 269,
§ 10 (a), as a subsequent offender; carrying a loaded firearm without
a license, G. L. c. 269, § 10 (n); and carrying ammunition
without a firearm identification card, G. L. c. 269,
§ 10 (h) (1).
 The defendant also moved to suppress
the recovered revolver as the fruit of an unconstitutional seizure. This motion was denied, a decision that the
defendant does not challenge on appeal.
 Under the terms of the agreement, the
defendant pleaded guilty to possession of a firearm without a license, as a
subsequent offender, and carrying a loaded firearm without a license, and the
prosecutor dismissed the remaining charge.
 See Bargh & McKenna, The Internet
and Social Life, 55 Ann. Rev. Psych. 573, 581 (2004) ("on-line
relationships are highly similar to those developed in person, in terms of
their breadth, depth, and quality"); Bedi, Facebook and Interpersonal
Privacy: Why the Third Party Doctrine
Should Not Apply, 54 B.C. L. Rev. 1, 6 (2013) ("Social scientists and
psychologists alike have recognized that [online] relationships can have the
same qualitative structure as traditional face-to-face
relationships"). See also
Grimmelmann, Saving Facebook, 94 Iowa L. Rev. 1137, 1151 (2009) ("[Social
media] provides users with a forum in which they can craft social identities,
forge reciprocal relationships, and accumulate social capital"); Lenhart,
Smith, Anderson, Duggan, & Perrin, Pew Research Center, Teens, Technology
& Friendships, at 53 (Aug. 6, 2015), https://www.pewresearch.org/wp-content/uploads/sites/9
("Given the thorough integration of social
media . . . , it is no surprise that these sites play an
important role in the establishment of friendships and the everyday back and
forth of peer relationships").
 See Keller, Social Media and
Interpersonal Communication, 13 Soc. Work Today, no. 3, May/June 2013, at 10
("studies have shown that people actually are becoming more social and
more interactive with others, but the style of that communication has changed
so that we're not meeting face-to-face as often as we used to," but rather
interacting online); Madden, Lenhart, Cortesi, Gasser, Duggan, Smith, &
Beaton, Pew Research Center, Teens, Social Media, and Privacy, at 30 (May 21,
[https://perma.cc/5Z52-82ZK] ("the act of sharing certain kinds of personal
information on social media profiles has become much more common"
 In the alternative, the defendant
argues that even if we conclude there was no reasonable expectation of privacy,
a search occurred under the trespass test.
Under that test, a search occurs when "the government obtains
information by physically intruding on a constitutionally protected
area." Commonwealth v. Johnson, 481
Mass. 710, 715, cert. denied, 140 S. Ct. 247 (2019), quoting Grady v. North
Carolina, 575 U.S. 306, 309 (2015) (per curiam). We recognize that the United States Supreme
Court has held that the trespass test does not apply to "cases that do not
involve physical contact, such as those that involve the transmission of
electronic signals," United States v. Jones, 565 U.S. 400, 411 (2012), and
accordingly consider the defendant's argument under the more protective
provisions of art. 14, see Commonwealth v. One 1985 Ford Thunderbird
Auto., 416 Mass. 603, 607 (1993). Even
if we were to conclude that art. 14 does extend to electronic trespasses
(a result we do not reach), the defendant could not satisfy the trespass test,
because he consented to the officer's presence.
 The defendant contends that the
judge's finding that he did not demonstrate an awareness of his privacy
settings was clearly erroneous and not supported by the record. We do not agree. The defendant did testify that he set up the
account so that only friends could see its content. He also testified that he intentionally had
posted some or all of his stories as public so that everyone could see them
("I had [my account] private, but yes, I think -- I believe I
probably did at the time had it so everybody could watch my Snap"). In response to the question, "And is
that the way that you had your account set up, so that everyone see your
Snaps?" however, the defendant testified, "I'm not too sure. I don't remember."
Although one plausible reading of the
defendant's uncertain or somewhat varying responses is that he was confused by
the questions but did know that his account was private, an equally plausible
reading is that he was not sure which privacy settings applied to his
account. "Where there are two
permissible views of the evidence, the factfinder's choice between them cannot
be clearly erroneous." Commonwealth
v. Carr, 458 Mass. 295, 303 (2010), quoting Demoulas v. Demoulas Super Mkts.,
Inc., 424 Mass. 501, 510 (1997). See
Commonwealth v. Colon, 449 Mass. 207, 215, cert. denied, 552 U.S. 1079 (2007),
S.C., 479 Mass. 1032 (2018) (judge's finding was not clearly erroneous where
defendant's testimony was contradictory).
In addition, given the irreconcilable testimony by Connolly and the
defendant, which the judge emphasized, the record supports her conclusion that,
if indeed he had such a policy, the defendant did not follow his asserted
policy of only accepting friend requests from people that he already knew. See Commonwealth v. Yesilciman, 406 Mass.
736, 743 (1990), quoting Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516,
517-518 (1984) ("a judge's resolution of . . . conflicting
testimony invariably will be accepted").
 The defendant testified that
"Frio Fresh" was a "random" name, and not a nickname by
which he was known; the Commonwealth did not dispute this assertion.
 See Olson, Delete by Default: Why More Snapchat-Like Messaging Is on Its
Way, Forbes, Nov. 22, 2013, https://www
[https://perma.cc/8DZ7-8L2U] (Snapchat is inspired by "[a] craving for
privacy," and it is designed so that "the sender is always in
 For instance, Connolly testified that
he believed the defendant deleted one of his stories shortly after posting it,
thus preventing Connolly from recording the story.
 Had the defendant sent the video
recordings as direct snaps, as opposed to stories, he would have retained even
more control over the content, because the content would have disappeared in no
more than ten seconds after the recipient opened the message, thus making it
even less likely that the content would be recorded or shared with others. See Magill, Discovering Snapchat: How Will Snapchat and Similar
Self-Destructing Social Media Applications Affect Relevance and Spoliation
Under the Federal Rules of Civil Procedure?, 9 Charleston L. Rev. 365, 372-373
 See Palmieri v. United States, 72 F.
Supp. 3d 191, 210 (D.D.C. 2014), aff'd, 896 F.3d 579 (D.C. Cir. 2018); Chaney
v. Fayette County Pub. Sch. Dist., 977 F. Supp. 2d 1308, 1315-1317 (N.D. Ga.
2013); R.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F. Supp. 2d 1128, 1142
(D. Minn. 2012); United States v. Meregildo, 883 F. Supp. 2d 523, 526 (S.D.N.Y.
2012); People v. Pride, 31 Cal. App. 5th 133, 141 (2019); Everett v. State, 186
A.3d 1224, 1229 (Del. 2018), cert. denied, 139 S. Ct. 1299 (2019).
 We do not suggest that an individual
who unknowingly accepts a friend request from an undercover officer necessarily
loses any reasonable expectation of privacy in the individual's Snapchat
content. If, for example, a police
officer had gained access to an individual's account by masquerading as a close
friend or family member, the result might be different. Given the difficulty of determining an
individual's true identity over the Internet, it could be that such a
misrepresentation would be such that a defendant did not actually assume the
risk of providing access to an undercover agent.
 We note that what the defendant chose
to reveal by posting his stories did not include the information that Snapchat
technology, like other Internet applications, includes for its own purposes in
every snap or story, but that is not immediately visible to a Snapchat
user. See Montie vs. Crossfire, LLC,
U.S. Dist. Ct., No. 19-cv-10455 (E.D. Mich. Nov. 30, 2020). Such information, known as metadata, attaches
to electronic objects such as text messages, photographs, and video recordings,
and describes how, when, and by whom the item "was collected, created,
accessed, or modified and how it is formatted." Williams v. Sprint/United Mgt. Co., 230
F.R.D. 640, 646 (D. Kan. 2005). For
example, the metadata that attaches to Snapchat content can reveal the sender's
location, device address, and mobile telephone number. See Bungert, Do It for the Snap: Different Methods of Authenticating Snapchat
Evidence for Criminal Prosecutions, 2021 U. Ill. J.L. Tech. & Pol'y 121,
135 (2021); Levinson-Waldman, Government Access to and Manipulation of Social
Media: Legal and Policy Challenges, 61
Howard L.J. 523, 554 n.166 (2018). While
invisible within Snapchat, metadata can be extracted from Snapchat content
using other applications. Helget v. Hays,
300 F.R.D. 496, 500 (D. Kan. 2014).
Although such information is not at issue here, we recognize the
difference between information that is purposefully revealed by the user of an
electronic device and that unknown information that is created or shared
through technological processes absent any input by the user, the latter of
which we have excluded from the analysis of a decision to share information
with a third party. See Commonwealth v.
Augustine, 467 Mass. 230, 251 (2014), S.C., 470 Mass. 837 (2015).
 "Pinging" is the process of
causing a cell phone to "transmit its global positioning system (GPS)
coordinates to the [cellular service] provider," which then can be
provided to police to assist in locating the individual in possession of that
device. Commonwealth v. Almonor, 482
Mass. 35, 36 & n.1 (2019).