Privacy Interests in the Texts You've Sent

Let's say you've got a client, we'll call him A. A sends incriminating text messages to B's phone. Cops seize B's phone as part of an investigation involving B. Assume for the purposes of this argument that B no longer has a privacy interest in the contents of her phone (e.g., she's dead or has abandoned it). Moreover, let's say that there was no reason (or exigency or a warrant) to search the phone. Cops search the phone and find the text messages that A sent. They use these text messages to track down A, and arrest him.

Can A get the text messages suppressed? Specifically, can A argue that he had a privacy interest in the text messages, even when they were discovered on B's phone?

This issue has been kicked around at least once on this site (like | here), but not in great detail. Until now.

The short of it? The law on this issue is far from settled.

Under the 4th amendment, the Supreme Court has recently reflected a willingness to find a privacy interest in information readily disclosed to third parties, and in a recent case, noted how intrusive a search of a person's personal text messages can be. While some federal courts have compared the sending of text messages to letters, where the sender's privacy interest dissipates upon arrival, none of them are controlling.

Under Article I, section 9, while Oregon courts have refused to find a privacy interest in items that have been abandoned, they have held that a person may leave an item accessible to the public without implicitly authorizing everyone to access it. Therefore, just because a person sends a text message to someone (who could potentially share it with others), does not mean she implicitly authorizes anyone else to read it without the recipient's consent.

I. 4th Amendment

Under the 4^th amendment, a court could find that a person has a reasonable expectation of privacy in the text messages he sends even when they are discovered on the recipient's phone. While the Supreme Court has never directly addressed this issue, it recently issued two opinions discussing whether a person has a privacy interest in information otherwise readily available to third parties.

In U.S. v. Jones, the Supreme Court found that GPS vehicle tracking constitutes a search, even though the information garnered from the GPS was obviously available to third parties willing to follow the defendant as he drove. __ S. Ct. ___, 2012 WL 171117 (Jan. 23, 2012).

In her concurrence, Sotomayor noted that the premise that a person has no privacy interest in information disclosed to third parties is ill-suited to a world where people disclose a multitude of information in the course of routine activities. Id. While some people might see this "tradeoff" of privacy for convenience as worthwhile or inevitable, Sotomayor stated that:

I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Id. at *10. Sotomayor's concurrence, and the fact that the court was unanimously willing to suppress information readily available to any person willing to follow the defendant, demonstrate that the court is willing to (at least, occasionally) find a privacy interest in information disclosed to third parties.

In City of Ontario v. Quon, the Supreme Court analyzed the reasonableness of a search of an employee's text messages (sent and received) on an employer owned pager. 130 S.Ct. 2619 (2010). In Quon, the Court strongly suggested that outside of the employee-employer relationship, the public would have a reasonable expectation of privacy in their text messages:

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy.

Id. at 2630. Moreover, when defending the search of the employer-owned device as reasonable, the court noted that a search of the employee's personal cell phone or e-mail account would have been far more intrusive. Id. at 2631. As such, Quon also demonstrates that the court is willing to find a privacy interest in information disclosed to third parties.

Moreover, at least one appellate court has ruled that a person has a privacy interest in the text messages he sends. In State v. Clampitt, the state of Missouri issued two subpoenas to U.S. Cellular, requiring that it turn over certain text messages sent by one of its subscribers. ___ S.W. 3d ___, 2012 WL 177394, *1 (Jan. 24^th, 2012). The court ruled that the defendant had a reasonable expectation of privacy in the text messages, even though he had voluntarily disclosed them to the service provider (and the recipient) upon sending. Id. at *5.

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The court found that there was no reason not to extend this protection to text messages in possession of a third party because "subscribers assume that the contents of their text messages will remain private despite the necessity of a third party [the service provider] to complete the correspondence." Id. Relying on Katz v. U.S., 389 U.S. 347 (1969), the Clampitt court noted that "as text messaging becomes an ever-increasing substitute for the more traditional forms of communication, it follows that society expects the contents of text messages to receive the same Fourth Amendment protections afforded to letters and phone calls." 2012 WL 177394, *5.

In addition to Clampitt, several federal jurisdictions have already found that individuals have a reasonable expectation of privacy in their cell phones, and the information stored theirin. See, e.g., United 'States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008).

However, attorneys cannot just rely on Clampitt, or even Katz for that matter. In both of those cases, the government obtained the evidence from a person (or object) other than the party it was intended to reach. In Clampitt, the court noted that people assume that their cell-phone providers would keep the messages private since disclosing the information to the providers is necessary in order to transmit the messages in the first place. Id. at 5. Similarly, in Katz, the court found that the government could not place a wiretap on a phone booth in order to listen to the defendant's conversations, but said nothing of what would happen if the government had garnered the information from the person at the other end of the telephone line.

Some courts have made this distinction, see e.g., 'U.S. v. Jones, 149 Fed. Appx. 954 (11th Cir. 2005), holding that a person has no interest in messages discovered on a third parties phone. In cases like Jones, courts analogized the sending of text messages to the sending of letters and e-mails, holding that a person only has a privacy interest in letters she sends before they reach the intended recipient. [#_ftn5 ]The ninth circuit however, has not officially made this distinction, since it has only noted (in dicta) that a person's reasonable expectation of privacy "may be diminished in 'transmissions over the Internet or e-mail that have already arrived at the recipient.'" U.S. v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (quoting United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir.2004) (emphasis added)).

As such, none of the case law discussed above controls this issue. In addition to the Supreme Court's willingness to find privacy interests in information disclosed to third parties, federal courts have finally begun to recognize how much personal information our cell phones can contain, like this opinion from the 7th circuit. By emphasizing the Supreme Court's recent opinions, as well as the massive amount of information our phones can contain, attorneys may well have a winning 4th amendment argument.

II. Article I, section 9

Under Article I, section 9, the argument that a person has a privacy interest in the text messages he sends is even stronger.

In State v. Delp, the Oregon Court of Appeals held that a person does not have a privacy interest in usage based information generated by his internet service provider, i.e., his name, e-mail address, local and long distance billing records, etc. 218 Or. App. 17, 27 (2008). The court's ruling was based on the fact that this information was usage based and not content based, with the court reaffirming that citizens obviously maintain privacy rights in the content of their telephone calls. Id. at 23, 27 (citing State v. Johnson, 340 Or. 319, 336 (2006)).

While the court never actually held whether a person has a privacy interest in the content of his internet conversations and e-mails, its emphasis on content-based privacy rights in other areas suggests that it would be willing to find such an interest. [#_ftn7 ]

Additionally, while Oregon courts have repeatedly held that a person does not have a privacy interest in items or records that he has abandoned, See State v. Howard/Dawson, 342 Or. 635, 638 (2007) (finding that the defendant had abandoned any privacy interests in his trash when it was picked up by the sanitation company during its regular course of business), Howard explicitly relied on the fact that the police received the trash through the consent of the intended recipient, the sanitation company.

In a case like State v. Galloway, where the police searched through the defendant's trash before the sanitation company picked it up, the court ruled that the defendant had not abandoned privacy interests in the trash with respect to the police officers. 198 Or. App. 585 (2005). The court noted that the defendants "placed their garbage in closed containers in front of their residences, manifesting to objectively reasonable third parties that the contents were to be collected only by a designated entity," and that they did not "implicitly authorize anyone else to paw through their garbage and view or take items…" Id. at 595?597 (emphasis added).

Arguably, when a person sends a text message, he implicitly authorizes the intended recipient to do what he wants with it, as in Howard. However, as Galloway suggests, that does not mean that the sender authorizes anyone else other than the recipient to view those same messages without the consent of the recipient.

Even if officers find the incriminating text messages on a phone that does not belong to the client, that does not automatically mean he loses all privacy interests in them. Under Article I, section 9, a "person's right to be free from unreasonable searches extends to those places and things in which the person has a 'privacy interest,' even when there is no physical or sensory invasion into the person's own possessions or space." State v. Johnson, 340 Or. 319, 336 (2006). For example in State v. Lynch, the court found that the officers still needed a search warrant to search the contents of the defendant's duffel bag that he left in his friends car, notwithstanding the consent of the car owner. 94 Or. App. 168, 171?172 (1988).

Ultimately, these cases demonstrate that even though A's text messages may have been found on B's phone, that hardly means his privacy interest is automatically diminished. If you ever have this issue arise in a case, or one like it, don't concede it. It could make or break your case.