Yesterday, the Cyberlaw Clinic filed an amicus brief before the Supreme Judicial Court of Massachusetts (“SJC”) in Commonwealth v. Dilworth (SJC-13547). The Clinic represented Berkman Klein affiliates Michael Bennett and Zahra Stardust, who were joined on the brief by the ACLU of Massachusetts and the Innocence Project. The brief supports defendant-appellee Richard Dilworth, Jr., who has raised claims of racial profiling in the Boston Police Department’s (“BPD”) use of social media as an investigative tool. Through this brief, amici seek to increase transparency around racially-targeted, online police investigative techniques.
This case arises out of the BPD’s practice of creating fake social media accounts, “friending” social media users, and then searching those users’ posts for evidence. In this case, a BPD officer “friended” Mr. Dilworth on Snapchat using a fake name and bitmoji, or avatar. The officer then had access to Mr. Dilworth’s posts, including videos in which he was holding a firearm. The BPD used these videos to target, search, and arrest Mr. Dilworth, who was charged with firearm offenses. Mr. Dilworth now seeks discovery about the BPD’s social media investigative practices – including the names and images used in its fake social media accounts. The trial court ordered discovery, but the BPD refused to comply, resulting in the dismissal of the charges. The BPD then appealed to the SJC.
In February 2024, the SJC solicited amicus briefs on several topics, including the correct standard for considering discovery requests related to racially-disparate investigative techniques. In the brief, amici argue that the same standard used to analyze racial bias in traffic stops and stop-and-frisk applies here. Those standards – which are the result of careful consideration of the evidentiary hurdles defendants face – are equally appropriate for online intrusions into personal spaces. This approach is consistent with SJC’s history of applying established legal doctrines to emerging technologies. Moreover, it recognizes the reality that online spaces have been essential for personal and political activities of communities of color. Allowing police to infiltrate these spaces would chill these activities. Finally, amici note that online investigations are particularly opaque, and that discovery would also provide socially beneficial transparency.
Spring 2024 Cyberlaw Clinic students Jane Boettcher, Angie Cui, and David Poole worked on the brief alongside attorneys from ACLUM and the Innocence Project. The students were supervised by Wendy Chu and Mason Kortz, assisted by teaching fellow Isabel Sistachs. The Clinic looks forward to SJC’s decision in this case.
Image John Adams Courthouse (Boston, Massachusetts), courtesy Flickr user cmh2315fl.