Intellectual Property Law

Be Careful- There May not be Reasonable Expectation of Privacy in Text Messages

By Martha L. Arias

Is there reasonable expectation of privacy in text messages? Just as this question arouse in the context of e-mails, telephonic conversations, computer information, and other technological means, users are now wondering whether their text messages are truly private.  A simple answer is no; there is no reasonable expectation of privacy in text messages when those messages are offered by one of the parties to the communication. This article provides a legal explanation to this issue through a case decided by the United States Court of Appeals for the 11^th Circuit.

The Fourth Amendment to the United States Constitution protects people?s expectation of privacy provided that two elements are met: (1) that there is a subjective expectation of privacy, and (2) that society is prepared to recognized that expectation as objectively reasonable. United States (U.S.) courts, however, have unanimously recognized that no expectation of privacy exists when information is revealed to a third party and that party voluntarily conveys the information to government authorities, even if the party revealing the information thinks the information is revealed in confidence or for a limited purpose. These two well settled constitutional principles have been applied to the text messaging context.

In the case of United States v. Jones, 149 Fed. Appx. 954 (Ct. of Appeals 11^th Cir. 2005) (hereafter Jones), several defendants were indicted on numerous charges of conspiracy to possess with the intent to distribute cocaine, crack cocaine, and marijuana. Defendants performed these activities in Nevada, Florida, Tennessee and California, and communicated among them through text messages.  The illicit drugs were shipped through the use of common parcel carriers.  The government intended to use the text messages sent among defendants to prosecute them. They were obtained by subpoena from the company providing text messages. Defendants moved to suppress that evidence on constitutional grounds; that is, they claimed reasonable expectation of privacy.  The district court ruled for defendants and ordered suppression of evidence found in the text messages. Then, the government used one of the defendants as key witness. This witness offered those text messages in which he communicated with his co- defendants.  These messages were offered as evidence in court and the district court held that those messages were allowed as evidence as long as they related to communication the key witness sent to or received from the co-defendants. Defendants against whom the text messages were introduced were convicted, and they appealed that conviction.

The court of appeals held that the district court did not abuse its discretion when it admitted the text messages offered by the key witness because they were messages in which he participated.  The court admitted that expectation of privacy in text messages or e-mails was a new issue for this court, and it compared how other circuits had solved this legal issue.  Other circuits have compared e-mails with letters sent by postal mail, the court held.  Although mail letters are protected by the Fourth Amendment, "if a letter is sent to another, the sender's expectation of privacy ordinarily terminates upon delivery." United States v. King, 55 F.3d 1193, 1195-96 (6th Cir. 1995). Also, the court held, an individual sending an e-mail loses "a legitimate expectation of privacy in an e-mail that had already reached its recipient." Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004). See also United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996).  Therefore, analogizing these holdings to text messages, the transmitter of a message enjoys reasonable expectation of privacy that government authorities will not intercept their communication without probable cause and a search warrant, but once a transmission is sent and received by another person, the transmitter no longer controls its destiny.  Therefore, defendants in this case had no reasonable expectation of privacy in text messages received or sent to their co-defendant and key witness.  Thus, this evidence was properly admitted.

This holding and the U.S. trend on text messages and privacy is clear: there is no reasonable expectation of privacy in text messages sent to or received when they are revealed by one of the participants to the communication, even if they were sent in confidence and with a limited purpose. 

Full post as published by IBLS Internet Law Blog on September 09, 2009 (boomark / email).