Canadian Supreme Court holds that general warrant cannot be used to obtain prospective text messages

If you're interested, be sure to check out a recent Canadian case holding that a general warrant for prospective text messages was improper because the messages were being intercepted, requiring an interception order. The Crown was arguing that obtaining the messages from the phone company was not an interception of real-time communications because they were in a database and could therefore be acquired under the general warrant power. By an American law comparison, the court was essentially holding that interception of future text messages required a wiretap order as opposed to a search warrant or 2703(d) order.

Here's an excerpt from the main opinion (there was also a concurring and a dissenting opinion):

Text messaging is, in essence, an electronic conversation. The only practical difference between text messaging and the traditional voice communications is the transmission process. This distinction should not take text messages outside the protection of private communications to which they are entitled in Part VI. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications....

When Telus copies messages to its computer database, several steps in the transmission process have yet to occur. The production schedule required by the general warrant in this case means that the police likely obtained stored copies of some text messages before they were even received by the intended recipient. Had the police acquired the same private communications directly from the transmission stream, instead of from the stored copies, the Crown concedes that a Part VI authorization would be required. The level of protection should not depend on whether the state acquires a copy of the private communication that is being transmitted or a copy that is in storage by a service provider as part of the communications process.... 

The police gained a substantial advantage by proceeding with a general warrant. They did not need the Attorney General’s request for an authorization; they did not need to show that other investigative procedures had been tried and failed; they did not need to provide any notice to the target individuals; and they did not need to identify which other individuals’ private communications may be acquired in the course of the search....

The general warrant in this case purported to authorize an investigative technique contemplated by a wiretap authorization under Part VI, namely, it allowed the police to obtain prospective production of future private communications from a computer maintained by a service provider as part of its communications process. Because Part VI applied, a general warrant under s. 487.01 was unavailable.

R. v. TELUS Communications Co., No. 34252 (Can. 2013).

Here's some commentary:
It's not your job to collect or retain customer information for the cops

Supreme Court of Canada says that wiretap order is required to obtain text messages

Supreme Court quashes general search warrant for future text messages

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Montana district court finds privacy interests in messages not waived when owner voluntarily gives phone to law enforcement

In State v. Johnson, 2012 Mont. Dist. LEXIS 39 (Mont. Dist. Ct. 2012), a Montana federal district court held that individuals have a reasonable expectation of privacy in their incoming and outgoing text message communications. 

The case involved an alleged rape that was reported by the victim earlier in the year. While the defendant admitted to having sexual intercourse with the victim, he maintained it was consensual.

The victim voluntarily turned over her cell phone to law enforcement upon request. About 29,000 messages were retrieved. A discovery dispute arose when the defendant requested for all the text messages and the State sought to redact some of the messages.

In making its decision, the court recognized that it must balance the victim’s right to privacy with the defendant’s right to exculpatory information. The court discussed how the specific issue of the discoverability of text messages has been addressed in other jurisdictions. 

The Washington Court of Appeals earlier last year held that the constitution does not provide protection for text messages once the intended recipient receives them. State v. Hinton, 2012 Wash. App. LEXIS 1510 (Wash. Ct. App. 2012). In an attempt to distinguish this case from Hinton, the court focused on whether there is an expectation of privacy in sent and received text messages that are stored on the phone, instead of Hinton’s focus on the absence of privacy interest once text messages are sent.

The court also discussed State v. Patino, P1-10-1155A (R.I. Super. Ct. 2012), a Rhode Island case, where the trial court held that the defendant had a protected expectation of privacy in the text messages that were saved on his girlfriend’s cell phone.

The Patino and Hinton decisions arguably represent two different approaches to the issue of privacy interest in text messages. Rather than explicitly parting ways with the Hinton decision (which in practical effect, the court does), it settles for an ill-defined distinction between this case and Hinton.

Mirroring the approach taken in Patino, the court noted that the victim did not waive her privacy rights or the privacy rights of the individuals with whom she communicated by voluntarily turning in her phone to law enforcement.

After an in camera review, the court ruled that none of the redacted messages contained exculpatory material; thus, the privacy rights in the content of the communications of the both the victim and the individuals with who she communicated warranted protection. 

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Fifth Circuit surprises no one with decision that accessing another's text messages on their cell phone doesn't violate SCA

In Garcia v. City of Loredo, Texas, No. 11-41118 (5th Cir. 2012), the Fifth Circuit held that a person accessing text messages and images on the cell phone of another does not violate the Stored Communications Act (SCA). Those of you who have ever studied the SCA are certainly not surprised.

Garcia worked as a police dispatcher, and the wife of a coworker took Garcia's phone from her locker at work. After finding text messages and photos that showed department policy violations, the coworker's wife set up a meeting with the deputy assistant city manager and the interim police chief. The images and texts were shown, the videos were copied off of the phone, and Garcia was fired. Garcia later filed suit, and summary judgement was granted with regard to her SCA claim.

Her argument before the Fifth Circuit was that her cell phone was a "'facility' in which electronic communication is kept in electronic storage in the form of text messages and pictures stored on the cell phone." The Fifth cited a variety of district court cases, a law journal article by Professor Kerr, and the legislative history to back up its holding that devices such as cell phones are not facilities under the act.

The court also held that even if the cell phone was a "facility," the text messages and images certainly do not fit into the SCA's definition of "electronic storage." A common sense definition might make one think that would be the case, but we are, of course, dealing with statutes. Under the SCA, data is only in electronic storage when it "has been stored by an electronic communication service provider." If you want to know what that means, click here.

Thus, the Fifth affirmed the district court's grant of summary judgment, dismissing Garcia's SCA claim.

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Kansas appellate court okays warrantless cell phone search during search incident to arrest

In State v. James, No. 106,083 (Kan. Ct. App. 2012), as a matter of first impression in the state, the Court of Appeals of Kansas held that officers may read an arrestee's text messages in a cell phone found on his person as part of a search incident to arrest.

The defendant had been pulled over for having a headlight out. The officer smelled alcohol and soon learned the defendant and his passenger had been making drinks and consuming alcohol while in the vehicle. A search of the car revealed marijuana, and the defendant suggested it may belong to his brother. He did not know his brother's phone number, but because he was in handcuffs, he "stuck out his hip" as a gesture to get the officer to obtain his phone and call his brother. Here's what happened next:

While removing the cell phone from James' pocket, the deputy asked "are there going to be any text messages on here relating to drug sales?" And James responded that there was nothing about drugs on his phone. 

Deputy Voigts proceeded to look at the cell phone in James' presence. In scrolling through James' text messages, the deputy found two incoming messages that caught his attention. On December 8, 2009, a person named Ash sent a text message to James' cell phone, which read: "U got green I will meet U somewhere." Another text message, sent on December 9, 2009, said, "Hey T-Ray this is Cotie. U got a 20?"

Never was the officer told he could not search the messages, and the phone did not require a password. The defendant was later charged with various drug crimes. The text messages were used as evidence at trial, and the defendant was convicted and sentenced  to 44 months in prison.

On appeal, he argued that the search violated his Fourth Amendment rights and that the use of the messages was improper under the rules of evidence.

The Court of Appeals found that the search of the cell phone for text messages "probative of criminal conduct ... was a valid search incident to a lawful arrest." Further, the court found unpersuasive the defendant's arguments that cell phones should be treated differently than other containers including Ohio's Smith v. State (finding that the search of cell phone requires a warrant) and Kansas's own State v. Rupnick (holding that the search of a computer hard drive requires a warrant). The state made a consent argument, but the court did not need to consider it.

Finally, the court found that the text messages were not inadmissible hearsay. The questions "U got green" and "U got a 20" were not "offered to prove the truth of the matter stated." The questions are "neither true nor false" and thus do not qualify as hearsay.

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Arkansas Supreme Court upholds murder conviction over argument that text messages were improperly obtained by a prosecutor's subpoena

In Gulley v. State, 2012 Ark. 368 (Ark. 2012), the Supreme Court of Arkansas held that the defendant's argument that text messages obtained by a prosecutor's subpoena violated the federal Stored Communications Act and Fourth Amendment would not be considered because the objection was not made at trial, and the defendant did not argue on appeal that the prosecutor had abused the subpoena power.

The defendant had been convicted and sentenced for capital murder and attempted capital murder, and three text messages were presented at trial which had been obtained through a prosecutor's subpoena. One included that the victim's child is "going to be left without any parents," and another containing "dat b**** gonna pay, it's just a matter of time." At trial, counsel argued:

DEFENSE COUNSEL: If I send a text message out it is digitally transmitted through the air wave just like a telephone call is. There is no difference. The fact that they maintained it and printed it out is what the difference is but there is a reasonable expectation of privacy. It may have been subject to a warrant but not to a subpoena.
. . .
DEFENSE COUNSEL: You do not expect the telephone company is going to take it upon themselves to give it to a third party based on a subpoena. It has to be probable cause to get it not just carte blanche you issue a subpoena and go get it. That is what happened here. It may otherwise be something that could be used if a Judge says it but not by a Prosecutor just exercising its own subpoena. 

PROSECUTOR: I respectfully disagree, Your Honor, with regard to the Prosecutor's subpoena. Like I say, it is just like a grand jury, it's a quasi-magisterial function and it is a power that is conferred upon the office of the Prosecuting Attorney, same as grand jury in the State of Arkansas.

The judge denied the motion, finding that there could not be an expectation of privacy because the messages "can be picked up by a scanner with the proper device." Defense counsel also argued the messages should not be admitted on the basis of relevancy, juror confusion, hearsay, and rule 403. The court limited admission to three text messages.

On appeal, the defendant argued that the use of the subpoena to acquire the text messages violated the SCA and the Fourth Amendment. However, because he did not make an SCA-related objection at trial and did not argue on appeal that the prosecutor abused the subpoena power, the court refused to consider the issue.

The defendant also appealed the admission of the messages as evidence, arguing they were hearsay and not properly authenticated. The supreme court disagreed on both issues.

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Louisiana appeals court finds expectation of privacy for text messages

In State v. Bone, No. 12-KA-34 (La. Ct. App. 2012), the Louisiana Court of Appeal held that where a person is the "exclusive user of a cell phone," they are entitled to a reasonable expectation of privacy in text messages sent and received from the phone. However, the mistake in denying evidence suppression was harmless error, and the conviction was affirmed.

The defendant was a suspect in a murder case, and law enforcement obtained a subpoena duces tecum to receive a printout of text messages he had sent and received from his phone. Several of the messages appeared to show his involvement in the murder.

On appeal, the defendant argued that his motion to suppress the text messages should not have been denied. The state argued "it had reasonable grounds to obtain the requested information." The defendant's motion, however, argued the records were obtained "without a showing of probable cause as required under the Electronic Communications Privacy Act." (That's not the standard, of course.) The state argued that the defendant had no reasonable expectation of privacy because:

(1) defendant is not the subscriber or owner of the cell phone number at issue; (2) the privacy policies issued by Sprint Nextel specifically warn customers that information may for certain reasons be disclosed to authorities; and (3) defendant admits in the messages he sent from his phone that he did not have a subjective expectation of privacy in the messages.

The Court of Appeal first found that the "defendant did not have a reasonable expectation of privacy in the call detail record log associated with his phone number." On the other hand, the court held otherwise with regard to the text messages.

The issue before this Court is not whether the state is permitted to obtain the content of text messages sent on a defendant’s cell phone; rather, the question in this case is the standard that the state must meet in order to obtain such information. We find that here, where defendant was the exclusive user of the cell phone and was permitted to use the phone for personal purposes, he had a reasonable expectation of privacy in the text messages sent and received on the cell phone and further find that the collection and review of the content of defendant’s text messages sent and received by that phone constituted a search which required a showing of probable cause.

Thus, the court held that the motion to suppress was erroneously denied. The decision was, however, harmless error as the messages were "simply corroborative of other competent evidence introduced at trial." The trial court decision was affirmed.

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Rhode Island court finds expectation of privacy in text messages, orders suppression for nearly all of state's evidence

In State v. Patino, P1-10-1155A (R.I. Super. Ct. 2012), the court ordered suppression of text messages sent by the defendant on a cell phone belonging to another person. The defendant had standing to challenge the search which, according to the court, was conducted in violation of the Fourth Amendment and not saved by any exception.

The case concerned the murder of the defendant's six-year-old son. The child's mother called 911 to report that her son was not breathing. An ambulance took the child to the hospital, and police remained at the home to speak to the parents. The mother took the officer through the house, and he noticed stripped beds and vomit. A cell phone in the house later made a beeping sound, and the officer picked up the phone to view the message. It was unattainable because of lack of credit, and after pressing another button, he was taken to the sent messages folder. He noticed the word "hospital" in a message and proceeded to read the entire message which read: "Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg." From the reading of this message, an investigation continued, and the case for murder against the defendant was built.

In its 190 page opinion, the court began with a standing issue. The first issue was the fact that he only occasionally stayed at the apartment where the phone was found, but the court found that this did not remove his expectation of privacy. Another issue was that the phone itself was shared, and the defendant was not the main user. As a result, the court, analyzing the phone "not as a container but as an 'access point' to potentially boundless amounts of digital information," held that the standing issue was in the text messages themselves rather than the phone in general.

Next, the court held that the defendant had a subjective and objective expectation of privacy in the text messages stored on the phone and that the possibility that someone other than the intended recipient will see the message is not enough to remove the expectation. With regard to the third-party doctrine, the court held that "the third-party doctrine is ill-suited for contemporary forms of communication and thus should not wholly defeat an individual's expectation of privacy in the contents of his or her text messages." As a result, the defendant had standing to challenge the search.

The court quickly labeled the search of the phone as unconstitutional and noted that the search of the phone was also not excused by any exception to the Fourth Amendment. The crime was not one that commonly involves cell phones nor was the cell phone an instrument that posed a danger to police. Further, the officer's continued manipulation after the beeping was objectively unreasonable and did not involve exigency. The state also argued that the incriminating message was in plain view, but the affirmative act of pressing buttons defeated the argument. Also, despite having consent to be in the apartment, it was limited to, for example, "a search for items that might have caused ... [the child's] health condition" and not to cell phone content.

As a result, the text messages were unconstitutional and subject to suppression. The messages were used to produce an extensive investigation including other cell phones, phone records from phone companies, and written confessions. This evidence was fruit of the poisonous tree and not saved by inevitable discovery or independent source.

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Washington court finds no constitutional protection for texts after reaching recipient

A panel of the Washington Court of Appeals held in State v. Hinton, 2012 Wash. App. LEXIS 1510 (Wash. Ct. App. 2012), that the United States Constitution does not provide protection for text messages once they are received by the intended recipient.

In Hinton, the recipient of the text message had been arrested earlier in the day on drug charges. An officer heard the incoming message sound from the phone, read the message, and engaged in a conversation with the sender. Here's the dialogue:

[Hinton]: Hey whats up dogg can you call me i need to talk to you.
[Officer]: Can't now. What's up?
[Hinton]: I need to talk to you about business. Please call when you get a chance.
[Officer]: I'm about to drop off my last.
[Hinton]: Please save me a ball. Please? I need it. I'm sick.

The two then agreed to meet, and Hinton was arrested and charged with attempted possession of heroin. At trial, he argued for suppression, suggesting that he had a legitimate expectation of privacy in the text messages he sent. The appellate court, however, held, "The Fourth Amendment does not protect Hinton's 'misplaced trust that the message actually would reach the intended recipient.' ... [A] text message user would expect that any privacy of the text message would terminate upon delivery to the receiving party and be subject to government trespass."

Judge Van Deren dissented in Hinton (and in its companion case, State v. Roden, 2012 Wash. App. LEXIS 1503, concerning another text messaging conversation on the same phone by the same officer), arguing that the "continuing search" after simply reading the e-mails required a search warrant, and thus the evidence should have been suppressed. The bulk of Van Deren's dissent relied upon the Supreme Court rulings in Quon and Jones, which he suggests create a reasonable expectation of privacy in text messages.

I agree with Justice Sotomayor and ... would hold under ... the Fourth Amendment that the State violated Roden's privacy rights and that the fruit of the illegal search of Lee's iPhone should have been suppressed. ...

Broadly interpreted, the majority's holding provides that all citizens of this state consent to police intrusion of their cell phone communications and that they have no expectation of privacy in any form of electronic communication under ... [the] federal constitution. That holding undermines every individual's legitimate privacy interests in communications afforded by evolving and existing technology.

As you may know depending on how often you read this blog, we talk about Jones a great deal, but my interest in this case is not to see how Sotomayor's opinion might apply, but rather to get back to some of the basics of Fourth Amendment law. The actions taken by the officer in this case, while common, leave open many problems.

One issue is that the phone's owner was in jail for a drug charge. His alleged illegal act had already happened so no text message received after that crime should be searched during the investigation for that crime. Of course, the message may simply appear, but Hinton's original message does not alone suggest any illegal act and is not, therefore, plain view. The search of the phone - and thus the entire scope of what law enforcement could use it for - should have been restricted to finding evidence for the owner's previous crime. 

Here, however, the officer worked to create new evidence for new crimes. It's one thing to look at the messages on a phone, but another to author new ones. In Hinton, the officer simply responded to a new message, and in Roden, the companion case, he responded to an old message and created a new conversation. But how far can this go? Could the officer message everyone in the phone's contacts? Could they send e-mails from the phone owner's account as well? Could they use technology that allows text messages to be masked with any phone number in order to collect (or create) evidence? And imagine the scenario where there is a defendant like Hinton, and the officer sends a text message implying the defendant is a drug dealer when, in fact, he is not, severely damaging his reputation. Allowing officers to send messages on behalf of a defendant (or anyone else) recklessly gives them a significant amount of power that is highly unnecessary and irresponsible.

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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.

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Wired.com explains how Big Brother is watching you

Wired.com recently published an article titled "9 Reasons Wired Readers Should Wear Tinfoil Hats" which hypothesized the many ways in which the government tracks us electronically. The post explains how the government [probably] uses wiretapping, tracking devices, border search, fake cell phone towers, government malware, and more. Some of it is simply written to entertain conspiracy theorists, but it is interesting to ponder nonetheless.

It's a little more hypothetical than I'd usually post, but the best part of the article is the graphic (at right) showing how long cell phone companies keep text messages, call records, and Internet activity.

Just last week, confidential guidelines were released detailing how long Facebook, Microsoft, and AOL keep IP logs and data.

RELATED NEWS: NPR released a story detailing how LAPD has a new computer program that predicts the location of future crimes based on past crime patterns. "[C]rime, especially property crime, happens in predictable waves."

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PA appeals court finds text messages not properly authenticated

In Commonwealth v. Koch, 2011 WL 4336634 (Pa. Super. Ct. 2011), the court held that text messages were not properly authenticated and should not have been admitted as evidence. The detective "testified that he transcribed the text messages, together with identifying information, from the cellular phone belonging to Appellant. He acknowledged that he could not confirm that Appellant was the author of the text messages and that it was apparent that she did not write some of the messages. Regardless, the trial court found that the text messages were sufficiently authenticated to be admissible." Neither the alleged sender or recipient testified at trial to authenticate the messages.

Courts often require a heightened standard for admission of electronic evidence because of the ease of falsifying this information, and a phone number or e-mail address tying it to the supposed sender is insufficient. Parties must take it further in order to show the alleged author was, in fact, the author. Other courts have shown admission of text messages by:

• Testimony from cell phone company, investigator, and co-conspirators (United States v. Hunter, 266 Fed.Appx. 619 (9th Cir. 2008))
• Recipient testifying that messages were received on his phone under the author's name and that each contained the author's unique signature (State v. Thompson, 777 N.W.2d 617 (N.D. 2010)) (Note, however, that the issue in Koch was that the cell phone was used by multiple people. Thus, a unique signature may not be influential.)
• Text messages contained details only the defendant would know (Massimo v. State, 144 S.W.3d 210, 216 (Tex. App. 2004))
• Author providing their car model and name (State v. Taylor, 632 S.E.2d 218 (N.C. Ct. App. 2006))
• Message showing up under saved number on witness's phone, victim's phone was found near her body, and evidence suggested no one had used her phone that day (State v. Damper, 225 P.3d 1148 (Ariz. Ct. App. 2010))

Many cases look to authentication requirements of electronically stored information (ESI) generally and do not apply specific rules for a specific type device. Therefore, authentication rules applying to e-mails or Facebook posts might also work for text messages. For example, a text message from Author saying he will go to a certain place at a certain time and evidence showing that he was there at that time, would be properly authenticated. Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011).

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911 to accept text messages, pictures, and video

The FCC announced a five-step plan to ultimately support acceptance of "emergency-related voice, text, data, photos, and video." But first, they plan to enable automatic retrieval of location data.

The benefits of this plan are profound. Suppose hostage victims are able to text but not make a phone call. Rather than having to send a text to a friend or family member to have it relayed, they can correspond directly with 911 - even sending pictures and videos of what is happening inside.

To take it a step further, what does it do to trial evidence? 911 phone calls are usually admissible under the present sense exception to the hearsay rule. Would multimedia messages including pictures and video be admitted as "a statement describing or explaining an even or condition made while the declarant was perceiving the event or condition, or immediately thereafter?" (FRE 803(1)).

Several local 911 programs already accept text messages such as Chicago and Black Hawk County, Iowa.

The FCC's press release is available here.

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