Cops Can Read Your Text Messages Without a Warrant
An appeals court in Washington State on June 26 upheld the conviction of Jonathan Roden, the client of a drug dealer whose cell phone the police had seized and then used to entice Roden to arrange a meeting to buy more heroin. The detective initiated the text messaging after finding older texts that suggested he was a client.
The Court of Appeals of Washington rejected Roden’s argument that the state’s use of his text messages on the dealer’s phone violated Washington State’s privacy act.
Washington’s privacy law didn’t help Roden because, the court said, “Roden impliedly consented to the recording and/or interception of the text messages he sent to the dealer’s iPhone.” And that implied consent came simply from Roden voluntarily sending the texts to the iPhone, which he knew would record and store them so that the dealer could read them, explained the court.
The key seems to be whether a message is “recorded,” at least in Washington State.
Your Texts Belong to the World
This is not surprising, says David Siegal, a partner in the white collar criminal defense practice group in the New York office of Haynes and Boone. In the absence of a legal privilege (such as attorney-client), anybody can repeat to law enforcement – and the state can use against you – a conversation you had with them, and the fact that it was an electronic conversation doesn’t change that.
The Washington court interpreted its state statute in terms of communications that have found their destination. The detective was merely looking at “versions of communications that had left the sender and were recorded on a device,” Siegal says. “The statute doesn’t prohibit looking at a recorded version maintained by recipient.”
Wiretapping laws wouldn’t have helped Roden, either. Federal laws only prohibit the government from listening in on conversations in real-time unless they have a warrant. That applies to electronic communications as well, but it depends on whether the messages, such as emails, have already been opened and read by the recipient. If the recipient does not agree to allow law enforcement to read the messages, “For newly arrived, unopened emails, the government has to get a search warrant,” Siegal explains.
In other words, protection against the government eavesdropping on messages en route to their destination disappears once those messages – emails or texts – are received and read by the recipient. Once your friend has read that text you just sent him, it’s fair game.
No Expectation of Privacy
Don’t we have a fair expectation that text messages to our friends (or drug dealers) are only for them and that the Fourth Amendment’s protections against illegal searches and seizures extend to the privacy of those messages?
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“That [protection] refers to things you’ve stored or kept to yourself,” Siegal says. “The Constitution has been interpreted to say that the government can’t come in and seize them. You have an expectation of privacy over things you’ve kept in your personal space.” But, he adds, “that does not apply to things you transmit to the outside world. Posts on your Facebook page, even just to close friends, are essentially made available to the world. Text messages are no different.”
The Washington appellate decision could have important repercussions in the developing law of electronic communications. “This case will be seen as a potential precedent for cases involving Twitter, Facebook, and other technologies that arise,” Siegal says. “The way new technologies work will determine how the laws are interpreted, so if a message disappears once it’s read, things may be different.”