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This week, the SJC reviewed a lower
court’s dismissal of gun-related indictments against Richard Dilworth, Jr.,
related to the state’s refusal to disclose the bitmojis and usernames it used
to conduct online surveillance through Snapchat accounts in 2017 and 2018.
Police arrested Dilworth for possession of a loaded revolver after Boston police
saw eight Snapchat videos in which Dilworth appeared to be holding a gun. Dilworth was also arrested again after the initial arrest, and again while in possession of a firearm, again after police saw him holding a gun on Snapchat.
During discovery, Dilworth sought the
bitmojis and usernames to determine whether the police used Snapchat to target
non-white individuals in violation of the Equal Protection Clause of the U.S.
Constitution. The state claimed that the Snapchat surveillance targeted
individuals suspected of criminal behavior based on tips received from
informants.
The state argued that it could not comply
with the discovery order because disclosure of the information would compromise
informants and police officers, but the Suffolk Superior Court rejected that
argument and granted Dilworth’s motion.
On appeal, during oral arguments, the SJC
questioned the defendant’s attorney about how the bitmojis and usernames would
strengthen the argument that the state had conducted selective prosecution. As
further support, Dilworth’s attorney explained that the defense had conducted
an informal survey of public defenders whose clients had been the subject of
Snapchat surveillance; the survey showed that 17 out of 20 cases targeted Black
individuals, and the other three were Hispanic individuals.
Dilworth’s attorney argued that the
discretionary choices made by the officers in setting up the investigatory
scheme (i.e., the use of Black bitmojis) went to the core claim that Dilworth
was targeted because of his race. However, Justice Serge Georges, Jr.,
interjected that Dilworth was targeted because “he can’t stop flashing and
posting videos of guns.” Justice Georges continued, “Mr. Dilworth was arrested
after whatever was witnessed online, and no sooner does he hit the street, he
does it again. So, it’s not this generalized kind of targeting that I see here.
It’s a specific targeting.” The defendant’s counsel replied that the
information the defense had developed raised questions about the true purpose
of the surveillance.
We will await the SJC’s decision on the legality of this Snapchat surveillance and how that decision could affect other types of social media surveillance and profiling.
A
partner in the Providence office of the regional law firm of Robinson + Cole
LLP, Kathryn Rattigan advises clients on data privacy and security,
cybersecurity, and compliance with related state and federal laws. She assists
clients in assessing risks related to technology and software contracts, as
well as with compliance-related issues with outsourcing and vendor management.
She represents clients across all industries, such as manufacturing, insurance,
health care, education, energy, and construction. She can be contacted at krattigan@rc.com.
