Social media users have an expectation of privacy
At the boundary of modern digital privacy and classic 4th Amendment to the US Constitution Search and Seizure jurisprudence lies a case in which a defendant posted videos of himself with a gun on Snapchat. In the instant case, the Defendant was arrested after being searched and found to have a gun on his person. He was arrested on multiple gun-related charges including possession of a gun after a previous conviction.
The police had probable cause to suspect he had a gun on him, because he had posted a video to Snapchat displaying the gun. He posted another video to Snapchat showing his location at an identifiable gym. When police officers showed up at the gym and saw that the suspect appeared to be wearing the same pants that he had been in the video in which he revealed the gun, they had enough probable cause to search his person and indeed found the gun.
Was it legal?
The Fourth Amendment provides that “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…”
In brief, probable cause means reasonable grounds. The police officers had reasonable grounds to think that the Defendant illegally had a gun on his person at the time. The combination of the two Snapchat videos, one showing a gun, the next showing its presumptive location, alongside the in-person recognition that there was a person at the location wearing the same distinct pants as in the gun video, gave the police officers reasonable grounds to search the suspect.
However, even though the text of the 4th Amendment didn’t change, the way that courts applied it did evolve. The Fourth Amendment offers a slightly more refined level of protection than is in the actual text. It now functions to protect people from warrantless searches of places or seizures of persons or objects, in which the individual has a subjective expectation of privacy that is reasonable.
The “reasonable expectation of privacy” element has been used to defend individuals growing marijuana in fenced-in-backyards or with guns in the trunks of their cars.
Reasonable Expectation of Privacy with Respect to Snapchat Videos
The Defendant had utilized the “private” setting for his Snapchat videos. This meant that only a limited class of individuals could view his Snapchat videos, namely his Snapchat friends. However, the Defendant had previously received and accepted a friend request from a local gang-unit police officer. Also relevant for determining whether a Snapchat video poster has an expectation of privacy is the fact that Snapchat videos are impermanent, disappearing from a potential viewer’s viewing timeline after 24 hours or a single viewing (depending on the video poster’s settings.)
Taking into account the transience of Snapchat videos, the Judge determined that Snapchat users may have an expectation of privacy. The expectation of privacy, the Judge asserted, would be further enhanced if a video poster had set their account to private, just as the Defendant here had done.
However, the Defendant, lost a reasonable expectation of privacy when he accepted random friend requests, including from someone who turned out to be a police officer. The officer’s Snapchat username was made-up and his account utilized the default Snapchat icon. The analysis would have led to a completely different result if the police officer had posed as an associate of the Defendant’s, in which case, he would have maintained a reasonable expectation of privacy.
Because the Defendant did not have a reasonable expectation of privacy, the search was reasonable, and the prosecution was able to keep the gun as evidence against the Defendant.
When it comes to privacy, its important to not only understand your rights, but to understand with whom or what you can use your privacy rights. The Fourth Amendment can be used against state actors, the General Data Protection Regulation (GDPR) can be used against individuals, businesses, and state actors, and the California Consumer Privacy Act (CCPA) can be used against businesses.
At Clarip, we provide solutions for businesses so that they can comply with data privacy requirements imposed on them by comprehensive data privacy laws like the CCPA, the GDPR, the Personal Information Protection Law, and others. Our software allows businesses to fulfill data subject requests, manage consent settings, such as using the “private” setting on what consumers choose to share with businesses, perform data mapping, manage vendors, and much more. Visit us at www.clarip.com or call us at 1-888-252-5653 to learn more.
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