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.
The short answer is yes. The government has the capabilities to install software on your computer that will hijack all of your information, and under the right circumstances, a court might issue a warrant allowing the the government to do it.
But recently, a magistrate judge in Texas very publicly denied an FBI warrant request to install invasive software on an unidentified “target computer” used to access someone’s local bank account. Although the accessed bank account is local, the IP address of the target computer resolves to a foreign country.
The magistrate judge noted at least three problems with the warrant: (1) it was not authorized under Fed. R. Crim. P. 41 (Rule 41); (2) the Fourth Amendment particularity requirements were not met; and (3) the invasive nature of video surveillance required greater Fourth Amendment protections. For the full text of the opinion, click here.
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.