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.
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 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
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.