Washington Supreme Court Holds That There Is Privacy In Text Messages

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privacy500Last summer, we wrote about two parallel cases in Washington, where text message privacy was under the microscope. Last week, the state supreme court issued opinions in both cases. Here’s a quick reminder of the facts. First, Roden

A police detective spent 5 to 10 minutes browsing through a cell phone officers took from Daniel Lee incident to his arrest for possession of heroin. The detective noticed several text messages from Jonathan Roden, responded to Roden with a new text message, and arranged a drug deal. Roden was consequently arrested.

And now Hinton

A police detective read text messages on a cell phone police seized from Daniel Lee, who had been arrested for possession of heroin. Among other things, the detective read an incoming text message from Shawn Hinton, responded to it posing as Lee, and arranged a drug deal. Hinton was consequently arrested and charged with attempted possession of heroin.

On appeal, Roden argued that Washington’s privacy act was violated by his conviction; while Hinton challenged his conviction under the Fourth Amendment. Let’s start with Roden. Here’s the state law in question:

The act states:
[I]t shall be unlawful for … the state of Washington, its agencies, and political subdivisions to intercept, or record any:
(a) Private communication transmitted by telephone… between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.

The court goes on to outline the elements that must be met in order for a violation to be found:

There must have been (1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication.

The main analysis here centers on whether the texts between Lee and Roden were “private communications”, and when determining this, the court considers “the subjective intention of the parties”, as well as “the duration and subject matter of the communication, the location of the communication, and the presence of potential third parties.” Based on this, the court concludes that the text messages, which arranged a drug deal, were indeed private communications. The state attempts to argue that “someone could intercept text messages by possessing another person’s cell phone”, and therefore there cannot be a reasonable expectation of privacy, but the court disagrees.

Individuals closely associate with and identify themselves by their cell phone numbers, such that the possibility that someone else will possess an individual’s phone is “unreflective of contemporary cell phone usage.”

As for the element of interception:

Detective Sawyer did not merely see a message appear on the iPhone. Instead, he manipulated Lee’s phone, responded to a previous text from Roden, and intercepted the incoming text messages before they reached Lee… We decline to find there was no interception here based on the fact that the messages were in electronic storage when they reached the phone-a technicality that has no relevance under our state statute.

Based on these two findings, the court concludes that the state privacy act was violated, and reverses Roden’s conviction.

The same judge also wrote the opinion in Hinton, where, even though the appeal had a different basis than Roden (state constitutional law, rather than state privacy law), the analysis was fairly similar. The court doesn’t get to Hinton’s Fourth Amendment argument, “as we resolve this case under our state constitution”, which actually “provides greater protections” than the Fourth Amendment:

Article I, section 7 “is grounded in a broad right to privacy” and protects citizens from governmental intrusion into their private affairs without the authority of law.

Under article I, section 7 a search occurs when the government disturbs “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.”

The state’s argument here was that the texts between Lee and the defendant were not “private affairs” as defined by the state constitution, and therefore not entitled to privacy protection. As in the other case, the court disagrees:

Despite the fact that a cell phone is carried on a person in public, text messages often contain sensitive personal information about an individual’s associations, activities, and movements.

[U]nlike letters, which are generally delivered to the home where they remain protected from intrusion, text messages are delivered to a recipient’s cell phone instantaneously and remain susceptible to exposure because of a cell phone’s mobility. Just as subjecting a letter to potential interception while in transit does not extinguish a sender’s privacy interest in its contents, neither does subjecting a text communication to the possibility of exposure on someone else’s phone. We find that Hinton retained a privacy interest in the text messages he sent, which were delivered to Lee’s phone but never received by Lee.

In this instance, the state argued that the messages were “in plain view”, a well-known exception to Fourth Amendment protections, but the court was not persuaded, and ultimately vacates Hinton’s conviction. The closing sentence is likely to be quoted often by privacy advocates in the future:

Article I, section 7 protects Washington citizens from governmental intrusion into affairs that they should be entitled to hold safe from governmental trespass, regardless of technological advancements. (Emphasis added)

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