Text Messages Under The Fourth Amendment – The Debate Continues

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IMG_1005By IT-Lex Intern Joey Chindamo (LinkedIn)

Is there an expectation of privacy in text messages? The Washington State Supreme Court will tomorrow hear oral arguments in two very similar cases that both asked that same question. As Courthouse News Service reported, both cases involved texting and drug deals:

Both cases involve men who were arrested after police intercepted text messages meant for an alleged heroin dealer. . .

Police had arrested Daniel Lee on drug charges and seized his cellphone… Impersonating Lee, the police then arranged drug sales with Shawn Hinton and Jonathan Rodin, both of whom had sent text messages to Lee’s phone. The police then arrested and charged these men with attempting to possess heroin.

The trial court judge convicted both Hinton and Rodin of their crimes, and a Washington state appeals court upheld each of their convictions. Now, both men are appealing to the Washington State Supreme Court, and the Electronic Frontier Foundation is on their side, having filed amicus briefs in both cases. Today, we take a look at each.

According to the EFF’s brief for the Hinton case, police had already confiscated Daniel Lee’s phone when it received incoming text messages, one of which was from Hinton. While pretending to be Lee (the drug dealer), officers set up a drug transaction with Hinton, and when he met for it, police arrested him.

On appeal, Hinton cited the Fourth Amendment, asserting an expectation of privacy in his text messages that was violated by the police officers’ unwarranted search. The appellate court disagreed:

“[The court ruled] that when Hinton sent the messages, he ran the risk the messages would be received by whoever possessed the phone, even if it was the government. While extending the Sixth Circuit’s rationale from United States v. Warshak – which found a reasonable expectation of privacy in emails – to text messages generally, it also concluded that this expectation of privacy ‘terminates upon delivery,’ and thus did not help Hinton.”

Judge Van Deren dissented, stating the majority’s rule would essentially meant that “no citizen of this state has an expectation of privacy in any form of electronic communication.”

In its brief, the EFF argued that Hinton’s expectation of privacy did not end once the text messages were sent to Lee’s phone. Citing a 2011 Pew Research Center Report, the EFF claimed that because of text messaging’s ubiquity, it was a communication method deserving of constitutional protection. Then, the EFF distinguished two cases the lower court had relied on that both dealt with pagers and the inherent lack of privacy in their content. Pagers only displayed phone numbers, the EFF said, so no privacy would attach to a simple number:

“But a cell phone is not so limited and a text message contains far more information than just a phone number. Text messaging is a medium by which people can share information and communicate their thoughts, ideas and emotions. ‘Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.’ City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 2630 (2010). Here, the text messages allowed the police to communicate directly with Hinton in real time in a way simply not possible by pager. Taking the true nature of a text message into account, it is clear that it deserves Fourth Amendment protection.”

Next, the EFF compared text messages to letters, which hold an expectation of privacy until they are “received by their intended recipient” and not just delivered to a mailbox. Comparing Lee’s cell phone to a “high tech mailbox,” the EFF claimed that Lee had never “received” Hinton’s text message because he had never opened it:

“By retrieving Hinton’s text message before Lee saw it, the government intercepted the message before it reached its final destination: Lee. The government essentially rummaged through a mailbox, took a letter, and opened and read it before the addressee was even aware of the message. Without a search warrant, this snooping violates the Fourth Amendment.”

Because the lower court also found that Hinton had no expectation of privacy when he “sent messages to Lee’s iPhone, over which he had no control,” the EFF again distinguished the technology for the court. The EFF explained that the phone was not the final destination of Hinton’s text message—it was Lee. Relying on the Supreme Court precedent of Katz v. United States, the EFF argued that the Fourth Amendment protects communications, and to hold otherwise would place “undue constitutional focus on control over a piece of property . . . rather than on Hinton’s communications with Lee.”

Katz found a reasonable expectation of privacy in a phone call, not the phone booth or telephone equipment. Nor could Katz claim any such privacy interest since he neither owned the phone booth or the equipment used to make the call. Yet the Fourth Amendment’s privacy protection extended to both parties on the phone call even though neither had ‘control’ over the phone booth nor could physically exclude the government from wiretapping it. That’s because what Katz ‘sought to exclude when he entered the booth was not the intruding eye – it was the uninvited ear.’” (internal citations omitted).

 The EFF’s amicus brief for the Roden case indicates several factual distinctions from the Hinton case. Unlike in Hinton’s case, where the police had custody of Lee’s phone at the moment Hinton sent his text message, police officers looked through Lee’s phone to see who he had contacted. Finding a text message from Roden already on the device, the police initiated a text conversation and set up a similar drug transaction. Again, when Roden came to meet for the deal, police arrested him.

Analytically, the Roden brief is virtually identical to the Hinton brief—probably a wise approach as, hopefully, it should result in consistent opinions from the Washington State Supreme Court, if not a consolidated opinion. While certainly not controlling nationwide, the opinion released by Washington’s High Court will be carefully read by technology law enthusiasts and constitutional law buffs alike. The issue of privacy as related to text messages is still unsettled nationwide, and as that Ars Technica article indicates, different courts have reached differing conclusions. Even an appeals court in Canada weighed in recently, holding that police can search cell phones as long as there is no password on them. It may take an appeal to the U.S. Supreme Court from a state supreme court to ultimately settle the issue, but until then, we will closely monitor these decisions state-by-state.

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