EFF urges court to protect privacy of text messages

Watchdog group urges Washington state Supreme Court to reverse dangerous ruling

This case represents such an obvious and egregious rights violation by police that I have a hard time granting good faith on the part of the Washington state authorities arguing otherwise.


Background in a nutshell: Police arrest a suspected drug dealer, rummage through the text messages on his phone, respond to one message while pretending to be the suspect, arrange a meeting, and arrest 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.

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You'd be hard-pressed to find anyone who would agree if we are talking about our own phones and our own text messages instead of the phones and text messages of an alleged drug dealer and alleged drug buyer.  

From an EFF press release:

"Text messages are a ubiquitous form of communication, and their context can be as private as any telephone conversation," said EFF Staff Attorney Hanni Fakhoury.  "We use texts to talk to our wives and husbands, our kids, our co-workers, and more.  Police should not be able to sift through these personal exchanges on a whim - they must show probable cause and get a warrant before accessing this information."

And it's the state's justification of this warrantless fishing expedition turned sting operation that is most worrisome, if not outright disingenuous.

"The state argues that just because someone can intercept a communication, you should reasonably expect that communication to be intercepted.  That's a dangerous way to interpret the Fourth Amendment," said Fakhoury.  "The prosecutors' theory would eviscerate any privacy protections in the digital age.  We're asking the Washington State Supreme Court here to recognize what's at stake and to require a warrant before allowing officers to read text messages on a cell phone."

The briefs EFF filed with the court are persuasive in arguing why the case law cited by the appeals court - one involving old-fashioned pagers, the other snail mail - are wholly inappropriate in terms of being applied to modern communications technology such as text messaging.

We can only hope that the state Supreme Court justices apply more modern thinking to this case.

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