Privacy Interests in the Texts You've Sent
by: Aalvarez • April 13, 2012 • no comments
Thanks to Amanda Alvarez for bringing St v. Clampitt (Missouri) to my attention. In that case, the state had issued two subpoenas.
The first investigative subpoena was issued on June 18, 2010, and requested U.S. Cellular provide the State with tower location information for Audrain County as well as "text message content and detail for incoming and outgoing text messages" for the number XXX-XXX-XXXX "for June 13, 2010 through present." The second investigative subpoena was also issued on June 18, 2010, and requested that U.S. Cellular provide the "text message content and detail for incoming and outgoing text messages for any and all phone numbers under the account" of number XXX-XXX-XXXX "for June 13, 2010 through present."
His motion to suppress was based on a privacy interest in those texts. The state's argued to the contrary.
This body of case law notwithstanding, the State claims that Clampitt had no reasonable expectation of privacy in the contents of his text messages because the text messages were in the possession of a third party. The State points out that generally, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 2582 (1979). While this is true, courts have held that "the mere ability of a third-party intermediary to access the contents of a communication cannot be sufficient to extinguish a reasonable expectation of privacy." United States v. Warshak, 631 F.3d 266, 286 (6th Cir. 2010) (emphasis in original).
The Missouri court rejected the state's argument:
The rationale used by the Warshak court in establishing individuals' reasonable expectation of privacy in the contents of their email is equally applicable to cell phone users' expectation of privacy in the contents of their text messages. Cell phone providers have the ability to access their subscribers' text messages; however, the providers' ability to access those messages does not diminish subscribers' expectation of privacy in their text message communications. Rather, subscribers assume that the contents of their text messages will remain private despite the necessity of a third party to complete the correspondence. Callers have long enjoyed Fourth Amendment protection of the information they communicate over the phone. We see no reason why the same information communicated textually from that same device should receive any less protection under the Fourth Amendment. Furthermore, society's continued expectation of privacy in communications made by letter or phone call demonstrates its willingness to recognize a legitimate expectation of privacy in the contents of text messages. What individuals once communicated through phone calls and letters can now be sent in a text message. Thus, 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. We therefore find that the trial court did not err in concluding that Clampitt had a reasonable expectation of privacy in the contents of his text messages.
Additionally, the Missouri court drew some inferences from recent US Supreme Court precedent, which wasn't on point factually but had some interesting dicta or, as the court described it, "intimations."
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 [in the employee-employer context]. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own.
As the Missouri court said, "Thus, it is clear the Court is saying that, outside the workplace and employer-provided technological equipment, a person has a reasonable expectation of privacy with regard to cell phone and text message communications on or via privately owned equipment."
But what about those texts you've sent but can be found on another person's phone? Can you assert a privacy interest in those texts? If you can assert a privacy interest in the texts which are held by the cellular provider, why not the phone of the recipient? Sure, the phone's owner can consent to show those texts to the police, but if he doesn't, whether you have a privacy interest can make or break the state's case.
I think anyone who claims to know the answer definitively is kidding themselves. We live in a world of rapidly evolving technology, and we don't know for certain how the 4th Amendment will play out. It's a fun time to be a defense attorney.
