Wednesday, January 25, 2012

Missouri appellate court finds reasonable expectation of privacy in text messages, adopts Warshak

The Missouri Court of Appeals has adopted the reasoning of the Sixth Circuit in Warshak, finding a reasonable expectation of privacy in text messages held by a third party. State v. Clampitt, 2011 Mo. App. LEXIS 1741 (Mo. Ct. App. 2012).

The defendant, James Clampitt was charged with involuntary manslaughter after a car accident. Investigators used subpoenas (apparently under a state statute as opposed to the SCA) to obtain his text messages and phone records beginning with the date of the accident and for a few weeks thereafter, hoping to find an admission. The prosecutor did not seek a search warrant because they felt "the text messages 'were records that were in possession of a third party,'" and it was therefore unnecessary. The trial court suppressed the evidence, and the state appealed.

The appellate court first looked at whether the Fourth Amendment is relevant, asking whether or not there is a reasonable expectation of privacy in text messages. They look to Quon (130 S. Ct. 2619 (2010)), and while acknowledging that it dealt with employers/employees, they interpreted the case to mean that the Supreme Court "strongly suggested ... the public would have a reasonable expectation of privacy in ... text message[s]."

Next, the court then cited six opinions where "courts have found that individuals have a reasonable expectation of privacy in their cell phones and the information stored therein, including text messages." None of these cases, however, find Fourth Amendment protection for text messages stored by a third party, but rather for the actual physical cell phone and its contents. Investigators could likely have obtained the text messages in each case directly from the phone company without regard to the Fourth Amendment's protections.

The court then turns to Warshak (631 F.3d 266 (6th Cir. 2010)), which involved law enforcement obtaining the defendant's email without a search warrant. Ultimately, the Sixth Circuit found that a reasonable expectation of privacy existed in the e-mails even if they are stored with a third party and declared part of the Stored Communications Act unconstitutional. The Clampitt court found Warshak to be rather persuasive.

Ultimately, the Missouri Court of Appeals found that people have a reasonable expectation of privacy in text messages. "[A]s 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." Further, the court found the search to be unreasonable and that good faith did not exist in obtaining the records.

In Warshak, the court determined that good faith existed because investigators relied on the Stored Communications Act, which traditionally allows e-mails and similar content to be obtained. In Clampitt, however, the state did not argue good faith reliance on the SCA so the court did not address it. Also, the good faith exception is only applicable to police officers, but here, it was the prosecutor who improperly obtained the messages.

SIDE NOTE: Our courts have traditionally held that there is no expectation of privacy in information held by a third party (See, e.g. United States v. Miller, 425 U.S. 435 (1976)). In the recent SCOTUS opinion in Jones (prior post here), Justice Sotomayor suggested a willingness to rethink that notion.

0 comments:

Post a Comment