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]

That's called entrapment and is actually illegal. The police have the right to catch or pursue someone during the commission or planning of a criminal act, but do not have the right to coax or coerce a criminal act for the sole purpose of arresting them. That would be like a cop riding your ass honking his horn and turning on his lights on the freeway until you speed up passed the speed limit then immediately pulling you over for speeding.

Re: Text Message = Instant Snail Mail?

[UnknowingFool]

Wow your understanding of "unreasonable" needs work. Let's look at the history of the 4th Amendment. It is a federal crime to intercept UPS mail. The police have to have warrants to open your mail unless you are a prisoner serving time being one of the few exceptions. When the telephone was first invented, police could listen in on conversations until the courts ruled that this communication was considered private. Email was being intercepted until courts again ruled that they are private. Now it is text messaging. Do you see a pattern?

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.

Re:Text Message = Instant Snail Mail?

[yndrd1984]

Not entirely unreasonable.

You're conflating the "reasonableness" requirement with the requirement for a warrant: When you get arrested it's reasonable to search you, and it doesn't require a warrant. When that search reveals a bag of cocaine it's reasonable to search your house, but the police still have to get a warrant.

The defense in this case is making an analogy between a cell phone and house keys - you can search for and confiscate them from a person as part of an arrest without a warrant, but you have to get a warrant to use them to collect further evidence.

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).

lock the phone?

[neurosieve]

another good reason to have a password on your phone

Re:lock the phone?

[slackware 3.6]

The reason I started locking my phone was my little kids trying to play Angry Birds on my phone every time I put it down. I never locked my phone before now it's always locked.

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"

[Anonymous Coward]

Why does everything like this have to go to the Supreme Court?

Because the government loves violating our freedoms, and some judges can't wrap their heads around the concept of privacy?

Re:Does not "evaporate"

[girlintraining]

What the government is arguing is A)

Getting in the way of their warrantless, lawless, do whatever the fuck we want, police state. And so they're just going to keep trying, because let's face it: The law is more or less a lottery. And a single fuckup can establish case law and precident that'll last for centuries. Thanks, common law.

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.

Re:Does not "evaporate"

[hairyfeet]

The problem is the founding fathers never saw how infinite wealth would tilt the scales, cops can do anything they want now because the state has virtually unlimited wealth to break you. After all its not costing the prosecutor a dime to come up with 50 bullshit charges to throw at you to lessen your chances of winning a lawsuit and if it takes 10 years to worm its way through the courts how does it hurt them? It don't but since the average citizen can't afford to pay a decades worth of lawyer fees and the law is so twisted and full of jargon now you have to have a damned good lawyer and with each charge they stick on you,no matter how bullshit, will make your lawyer's fees go up so in the end you simply can't fight back.

This is why cops act like such douchebags now, they know they can get away with it thanks to the state having unlimited time and wealth to use against you.

Re:Does not "evaporate"

[Kjella]

The problem is the founding fathers never saw how infinite wealth would tilt the scales, cops can do anything they want now because the state has virtually unlimited wealth to break you.

What, you don't think the government had more resources than lone individuals in the 1780s? That nobody was hustled by bullshit charges by sherrifs? Let's face it, if the system hates you then you've had huge problems all through-out history and things like due process and legal representation and a jury of your peers was exactly so the government couldn't do it as easily as before.

Are you sure the problems aren't your peers? Jammie Thomas did get a jury trial, they still decided to slam her with a $1.5 million dollar verdict for being a small-time, no-profit file sharer - even if you catch a shoplifter acting like an ass he's still not going to prison like he robbed a bank. In less civilized countries you throw stones at the stoning, here they throw proverbial stones from the jury box.

Re:Does not "evaporate"

[hairyfeet]

Actually? Nope, not really. You REALLY need to look at the history of this country as it is pretty fascinating, for the first century or so you could really represent yourself and not be in a major disadvantage and if a case went on for more than a week it was a rarity. Now cases taking a decade to worm its way through the courts isn't uncommon and if I were to drop just the laws of your county onto your head i could kill you, that isn't even counting state and federal.

And I'm sorry but Ms Thomas got 12 people too stupid to get out of jury duty, its an old joke but VERY true. My mom is VERY civic minded so when called she didn't try to get out and what she saw frankly shocked her, she had to hang a jury 11 to 1 because they were gonna convict a guy of arson because...get this, he was Italian and "Italians burn down things, didn't you watch Goodfellas?". Now I live down the street from the courthouse I I've sit in the back and watched how truly fucked up things have gotten but she didn't believe until she saw with her own eyes, hell even the fire chief admitted he didn't have a clue what had started the fire and that it would have made no sense for him to burn it as he didn't have enough insurance to even cover what he owed on the property, much less make anything, but that didn't matter because he was Italian and they had seen goodfellas. Hell I wish I could find it as I remember seeing a test where they gave random people a mock pair of trails, SAME evidence and SAME script word for word, the ONLY difference was they put the defendant in a fancy suit and styled his hair VS having him in jeans and a t-shirt, the outcome? T-shirt guy would have gotten 10 years while Armani suit walked and again SAME guy with SAME script, just different outfits!

So I'm sorry but things were VERY different back then but your average person could easily understand your average trial. Today the laws are written to be as obtuse as possible and your average Joe is lucky if he can read the legal BS put in your average EULA, much less understand a couple of dozen statues written by lawyers getting paid by the hour.

CFAA should handle this.

[VortexCortex]

Clearly the police were in violation of the computer fraud and abuse act.

Put 'em in jail.

Logic

[slackware 3.6]

So by Washington states logic I should be able to see the judges and police officers texts to.

Re:Logic

[c0lo]

If you've arrested them under suspicion of a felony and are conducting a search of their person then yes. Otherwise no.

Innocent until proven guilty?
Is there any constitutional difference on the level of guilt of a policeman/judge and a suspect under investigation?
The fact that one is a suspect, does it make the one automatically lose some or all their constitutional rights?

You really want me to start "suspecting" you?

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:Anyone can read your texts anyway

[Pi1grim]

Paper mail is not generally encrypted. Heck, when I'm talking to someone in my house I don't use assymetric crypto. It doesn't mean you are free to put bugs in my house. Intercepting SMS-es clearly requires intent and a number of manipulations. It's not like you can pick it up on a ham radio.

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

[AK Marc]

Better than the drug raids on people who own cars or houses the police want. Raid and take it all. It's not as uncommon as it should be, there was one in CA where the guy had a gun he grabbed during the home invasion. The police ordered his "hands up" Another ordered him to "put the gun down" While moving his hand from above his head to the ground to comply with both orders, he was killed. No drugs were found. I think that was yet another the police claimed was a "mistake". http://www.druglibrary.org/think/~jnr/botched.htm for another. Hundreds of examples out there.

The Solution: Burnnote.com

[splitsevin]

This is an Android, iOS and web app that just came out a few weeks ago. I've been playing with it and it's perfect for sending messages you don't want to exist after the person reads them.

Basically, it's a free messaging services where the messages self-destruct. They never get written do disk, just to volatile memory. If there's an outage messages will be lost, which sucks, but it does mean that they kind of mean business about privacy. The messages have a maximum shelf life of 30 days.

Here's a writeup in Techcrunch.

I don't know if it's going to get that big but I realized the other day that even in my non-criminal, law-abiding life there are still a lot of things that I send to people via SMS that I probably should not have. Lots. Of. Things.

They have a tech FAQ which goes into detail about encryption, privacy, etc.

Supreme Court of Canada has protected stored texts

[davecb]

Canada now requires a wiretap warrant, which is harder to get than a regular one. See http://www.cbc.ca/news/technology/story/2013/03/27/technology-telus-text-messages-scc-decision.html

In a separate decision, the Ontario appeal court ruled that one needs to put a password/passcode on your phone to demonstrate that you have and expect privacy in the data it contains. See http://www.cbc.ca/news/canada/ottawa/story/2013/02/21/ottawa-cell-phone-users-beware.html

--dave

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.