EFF Urges Court To Protect Privacy of Text Messages

netbuzz writes "The police in Washington state arrested a suspected drug dealer, rummaged through the text messages on his phone, responded to one message while pretending to be the suspect, arranged a meeting, and then arrested the recipient of the text — all without a warrant. The state argues – and an appeals court majority agreed – that both suspects had neither a legal expectation of privacy nor Fourth Amendment protection because both considerations evaporate the moment that any text message arrives on any phone. The Electronic Frontier Foundation is urging the state's Supreme Court to overturn that decision and recognize that 'text messages are the 21st Century phone call.'"

Comments

Text Message = Instant Snail Mail?

[Anonymous Coward]

If text messages are not covered by privacy laws, nor the fourth amendment, then surely the same could be applied to snail mail?
When you write a text, you're sending it from one person directly to another over an electronic network, both parties realistically expect that the person who sent it will be the person who owns the phone (or an authorised user), and that the person who receives it will be the person who owns the phone (or an authorised user).

Is it really any different to sending snail mail directly from one person to another over a physical carrier network? Both parties realistically expect that the person who signed the letter (the equivalent of a phone number) is the person who wrote it, and that the person it is addressed to will be the person to open it...?

Re:Text Message = Instant Snail Mail?

[yndrd1984]

[Fourth_Amendment_to_the_United_States_Constitution - wikipedia.org] (the section of that page titled "Searches incident to a lawful arrest" is particularly relevant...)

Did you actually read that part? The search and seizure in the case of an arrest is only reasonable for the immediate area and only to secure weapons and evidence. To quote your own article - "The justification for such a search is to prevent the arrested individual from destroying evidence or using a weapon against the arresting officer."

Do you imagine that the signers of the 4th would have thought it "reasonable" that when a man is arrested the police can use his signet ring to send false messages to whomever they like without judicial oversight?

Re:Text Message = Instant Snail Mail?

[Reverand Dave]

So what part of coax or coerce didn't make sense?

If you regularly buy large amounts of H then there should be actual legal ways they could use to catch you in commission of that crime without stealing someone's identity and tricking you into trying to buy drugs from them, which is entrapment.

The ends DO NOT justify the means. If you cannot trust the police to follow the law, then no one should be expected to follow it.

identity theft.. inciting to crime.. unauthorized

[gl4ss]

identity theft.. inciting to crime.. unauthorized use of communications device(guess who got the bill for the sms's?)... you guys sure have a fucked police! (sms is either a phone call or more appropriately it's a letter).

Does not "evaporate"

[chrismcb]

What the government is arguing is A)

no warrant was required because there should be no expectation of privacy in text messages, as anyone can pick up someone else's phone and read what's stored there.

and B) the EFF claims

"The state argues that just because someone can intercept a communication, you should reasonably expect that communication to be intercepted.

Remember the 4th amendment says "and papers" it does not say "and private papers that no one else can see" There are lots of things that anyone can pickup and read... a letter in an envelope (which can be intercepted as well)
There is a difference between glancing over someone's shoulder and seeing the text on the screen and physically taking the device, navigating to the text message section and scrolling through the messages.
We have every right and expectation that those texts will be private. As long as they aren't on the screen as we wave the phone around in the air.
Why does everything like this have to go to the Supreme Court?

Re:Does not "evaporate"

[bradley13]

Um, no? If the cops arrest you, they do not have the right to ransack your house.

They can search you and your car. As I understand it, the original idea was simply to ensure that you weren't armed and weren't carrying anything that they didn't want you to have while in jail. Creeping decisions by the courts have broadened this beyond recognition.

Allowing them to search your phone is much more like your house: This has nothing to do with officer safety. They may not want you to have the phone while in jail, so they can confiscate it. However, looking around in your files and messages is like going to your home and rummaging through your personal papers. So far, that *does* require a warrant. Granted, it's an easy warrant to get if you've been arrested.

Then they went the next step: using this guy's phone to set a trap for someone else. IANAL, but this sounds an awful lot like entrapment.

The police want to nail the bad guys. They will use whatever means they can get away with, because their cause is just and their hearts are pure. Mostly, the courts go along with them, because they are all players on the same team. This is all great, until you consider what happens when an innocent citizen falls under suspicion.

If the cops and prosecutors think you are guilty of some crime, they will use whatever means they have to nail you. Then they pile on the charges to intimidate you into accepting a plea bargain, so they can go on to the next case without the trouble of providing any due process. That pic of your kids in the bath? Child porn. That joking message to your friend? Conspiracy. Ridiculous, sure, but do you have the money to defend yourself?

It must be our goal as citizens to keep the system under control.

Are warrants that hard to get?

[hedgemage]

All they had to do was get a warrant. If they had enough evidence to pick this guy up, I'm sure any judge would gladly sign off on a warrant to 'search' his phone and then follow the proper procedures for the ensuing sting operation. This is sloppy police work, nothing more, and now the public is being forced to pay the price for it by being forced to pay for court challenges because no one has the guts to admit they were sloppy.

Re:Are warrants that hard to get?

[maroberts]

The question is whether getting a warrant takes some time, and that this may impede actions to prevent criminal activity.

However, as someone else has said, the 4th Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Given that the 4th Amendment specifies papers, it presumably should be interpreted in the modern age to include any form of written communication. This is similar to the Miranda case, where there is really little doubt that the perpetrator was involved in criminal activity, but the constitution should provide him with the same rights as anyone else.

Re:The Solution: Burnnote.com

[SternisheFan]

Nothing would stop someone from snapping a pic of the screen with the text displayed, and it would live on that way. Just saying.

Re:identity theft.. inciting to crime.. unauthoriz

[ganjadude]

if its the middle of the night, NO one should be in your home unless invited, someone breaks down your door, you have a right to defend yourself. How do you know its a real cop and not a thug breaking in pretending to be a cop? the problem isnt with gun owners, its with over reaching governments/ law enforcement.

having said all that, maybe you need to do a little more thinking before you type.