Text Message Privacy Faces Important Appeal

(CN) - Defenders of digital rights urged the Washington State Supreme Court to prevent the erosion of privacy when it hears two cases next month on text messages seized by police without a warrant.

Both cases involve men who were arrested after police intercepted text messages meant for an alleged heroin dealer, according to a pair of amicus briefs that the Electronic Frontier Foundation filed Monday.

Police had arrested Daniel Lee on drug charges and seized his cellphone, the group says. Impersonating Lee, the police then arranged drug sales with Shawn Hinton and Jonathan Rodin, both of whom had sent text messages to Lee's phone. The police then arrested and charged these men with attempting to possess heroin.

After they were convicted, Hinton and Rodin claimed on appeal that warrantless search of text messages had violated their Fourth Amendment rights.

A Washington appeals court upheld the verdicts in separate decisions. In Hinton's case, a majority found that the transmission of the text messages inherently risked the receipt of such communication by whoever had the phone, even the police. The opinion said that the expectation of privacy "terminates upon delivery" of the message.

In affirming Rodin's conviction, a panel found that he "anticipated that the iPhone would record and store the incoming messages," and that the messages would not be private.

Judge Marywave Van Deren dissented in both decisions, saying the search of text messages violated the Fourth Amendment.

The EFF's amicus briefs call text messaging "the 21st Century phone call."

It says the lower court's approval of warrantless interception of texts "ignored the technological realities of text messaging and threatened to erode privacy protection to a ubiquitous form of communication in the United States."

The brief cites a 2011 report from the Pew Research Center that found the 73 percent of cellphone owners who use text messaging services send and receive an average 41.5 messages per day.

It had been wrong to conclude that Hinton's privacy ended once he sent the text messages to Lee's phone rather than once Lee actually received them, the group argued.

This is Fourth Amendment protection in name alone, as it ignores the key, defining characteristic of text messaging: the fact it enables instant communication," its brief states.

Finding that texts lose their privacy because they might hypothetically be read by anyone is "dangerous to the future of privacy in an increasing digital world," the group also said.

The brief in support of Rodin calls a cellphone a "high tech mailbox."

It says numerous courts have found that a person's privacy right in mailed letters is not terminated upon delivery to a mailbox, but lasts until the letter is received by the intended recipient.

"The government essentially rummaged through a mailbox, took a letter, and opened and read it before the addressee was even aware of the message," the brief says.

The Washington State Supreme Court will hear oral arguments for both cases on May 7.

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