It is unclear, but we will soon find out thanks to two Washington state cases.
Think about it. When was the last time you sent a real letter? It takes a lot of energy to send a letter as opposed to a text message or an email. You need paper, pen, stamp, and envelope. What if you only have one thing to say? Forget about it; just send a text message. And that is what people do. Text messaging is a normal part of everyday communication, especially for the younger generation. It's quick. It's easy. Many people only own cell phones, giving up on the idea of a "house" phone entirely, and regularly use texts to communicate—I happen to be one of those people.
And the average person—as opposed to a lawyer or judge—likely expects that their text messages are reasonably private. At the very least, people generally think of it is a private conversation between themselves and the owner of the cell phone they texted.
On Tuesday, two cases were argued before the Washington State Supreme Court involving the right to privacy in text messages: (1) State v. Hinton and (2) State v. Roden. Both cases involve an officer using a suspected drug dealer's cell phone to text message the defendants and set up drug deals. The defendants moved to suppress the evidence, which the respective courts denied. Now the state supreme court will decide if there is a privacy right in a text message once that text message has been sent to another person's phone.
In Hinton, an officer who was holding on to a suspected drug dealer's seized cell phone noticed that the phone received a text message. The text message came from Shawn Hinton, a man that the officer knew from prior interactions. Through text message, the two set up a time and a place to meet for a drug deal. When Hinton arrived, the officer arrested him. He then called the number he had been texting to verify Hinton's identity. The State charged Hinton with Attempted Possession of Heroin. Hinton moved to suppress the text messages and the officers presence, arguing that the officer's actions violated the Fourth Amendment and article 1, section 7 of the state constitution. The trial court found that Hinton had no expectation of privacy, and the court of appeals agreed.
On his own iPhone, on his own computer, or in the process of electronic transit, Hinton's communications are shieled by our constitutions. But after their arrival, Hinton's text messages on Lee's iPhone were no longer private or deserving of constitutional protection. - State v. Hinton
Roden revolves around similar facts: the exact same officer did something similar on the exact same cell phone, but he did it to Jonathan Roden. The suspected drug dealer did not receive a text from Roden while police had the phone; but the officers searched through the phone to find the text messages. Roden moved to suppress the evidence under Washington's privacy act instead of the Fourth Amendment. The court found that Roden had no reasonable expectation of privacy and impliedly consented to the recording of the text message.
Roden voluntarily sent the test messages to Lee's iPhone with the expectation that Lee would read them. In doing so, he also anticipated that the iPhone would record and store the incoming messages to allow Lee to read them. - State v. Roden
Both of these cases represent an important privacy issue that the increasing reliance on technology to communicate has created. The Fourth Amendment has been frustratingly slow to respond to technology. The Supreme Court has consistently denied protection to information voluntarily disclosed to third parties: the numbers a person dials, to/from information on emails, IP addresses, and cellphone site records. But is the actual substance of a text message really outside the protection of the Fourth Amendment?
It seems that, at this point, most courts agree that a person's cell phone is protected from an unreasonable search. But the disconnect in this case is that the officer's did not have to search the defendant's phone. Because the police had possession of the cell phone that the defendants texted, it is as if the defendants contacted the officers directly (or, another way of thinking about it, sent a letter to the police station on accident).
The Hinton Court relied on State v. Wojtyna, a case where police acquired a phone number off of a pager, to determine that Hinton did not have a reasonable expectation of privacy in the text message. Of course, acquiring a phone number is fundamentally different than acquiring the actual substance of a conversation. The Supreme Court has long recognized that a person does not have an expectation of privacy in the phone numbers he or she dials, but it has not said that a person does not have an expectation of privacy in the substance of the phone conversation. There is a reasonable argument that the substance of the text message is closer to the substance of a phone conversation than to actual phone numbers. It is just that, with a text message, the substance is written down like a phone number is on a pager.
The court also compared the text message to a letter, reasoning that, "if a letter is sent to another, the sender's expectation of privacy ordinarily terminates upon delivery." The court "decline[d] to offer communication made using a technological device more privacy protections than have been provided for letters." This analysis raises a separate issue: when is a text message delivered? In State v. Martinez, the Ninth Circuit found that a person has a reasonable expectation of privacy in a letter until the addressee actually receives it. Thus, it appears that delivery might require more than just arrival in a mailbox. While the letter is floating through the mail system or in a mail box, the letter is protected from unreasonable search.
So, if a letter is protected while it is in a mail box, why is a text message not protected until it is read? After all, no one in this case is arguing that the suspected drug dealer actually received the text message. Instead, the officer was holding the suspected drug dealer's "mailbox" when the "letter" magically appeared in it.
As I mentioned in my last post, attempting to compare technological advances to established legal precedents pushes the boundaries of reality to the extreme. As communication styles and technology change faster than the law adapts, these issues will continue to arise. It will be interesting to see what happens with text message privacy. I will update once the Washington court reaches its decision.
For further reading on these cases, EFF wrote two amazing amicus briefs: one for Hinton and one for Roden.
About this Blog
I was once a licensed attorney (in Washington), but my license is now inactive. I like to geek out about entertainment,
internet, and privacy law. This blog is a place for me to do that. All of the views expressed are my own and should not be considered legal advice.
My personal blog is located under the tab Pax's Page.
Rachel is a typer of words.