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Ninth Circuit Finds Fourth Amendment Protection in Text Messages:
The Ninth Circuit handed down a very important decision today in Quon v. Arch Wireless Operating Company holding that users of text messaging services ordinarily have a Fourth Amendment reasonable expectation of privacy in the contents of the text messages stored on the service provider's network. Judge Wardlaw wrote the opinion, joined by Judge Pregerson and District Judge Ronald Leighton. It's a bit of a surprise that the panel decided the issue so squarely, given that it was only lightly covered at oral argument, but it's a noteworthy holding that I think is correct and very important.

  From the opinion:
  The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored. Here, we must first answer the threshold question: Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider's network? We hold that they do.
  In Katz v. United States, 389 U.S. 347 (1967), the government placed an electronic listening device on a public telephone booth, which allowed the government to listen to the telephone user's conversation. Id. at 348. The Supreme Court held that listening to the conversation through the electronic device violated the user's reasonable expectation of privacy. Id. at 353. In so holding, the Court reasoned, "One who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication." Id. at 352. Therefore, "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." Id. at 353. . . .
  . . .
  In United States v. Forrester, we held that "e-mail . . . users have no expectation of privacy in the to/from addresses of their messages . . . because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information." United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008). Thus, we have extended the pen register and outside-of-envelope rationales to the "to/from" line of e-mails. But we have not ruled on whether persons have a reasonable expectation of privacy in the content of e-mails. Like the Supreme Court in Smith, in Forrester we explicitly noted that "e-mail to/from addresses . . . constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers." Id. Thus, we concluded that "[t]he privacy interests in these two forms of communication [letters and e-mails] are identical," and that, while "[t]he contents may deserve Fourth Amendment protection . . . the address and size of the package do not." Id. at 511.
  We see no meaningful difference between the e-mails at issue in Forrester and the text messages at issue here.Both are sent from user to user via a service provider that stores the messages on its servers. Similarly, as in Forrester, we also see no meaningful distinction between text messages and letters. As with letters and e-mails, it is not reasonable to expect privacy in the information used to "address" a text message, such as the dialing of a phone number to send a message. However, users do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider.
  The reasoning here is broad: It pretty clearly indicates that there is a default of a reasonable expectation of privacy in not only text messages but also e-mails. It also further cements the emerging content/non-content distinction that I have been expecting courts to grab on to for some sort of certainty in this area. I ended up making this the critical distinction in my treatise coverage of these issues, see LaFave, Israel, King & Kerr, Criminal Procedure 4.4(c)-(d) (2007), and the Quon opinion further emphasizes the line.

  I worry that parts of the rest of the Quon opinion may trigger some confusion, because the court doesn't make entirely clear whether the Department's policies are relevant to the REP inquiry only under the special Fourth Amendment rules for public employment or under a standard that the court thinks applies more generally. To make a long story short, such policies are critical in the public employment context under O'Connor v. Ortega, but are not very important in the private employment context (except to the extent it provides third party consent rights for the employer).

In light of that, I think the Court should have clarified around the bottom of page 7021 that the employer's policies were relevant because under the Supreme Court's Ortega decision, Quon is a public employment case and special rules apply that make them relevant. Without that clarification, I suspect some readers will conclude that the Quon court thought policies are generally determinative of whether there is an REP in stored communications like text messages and e-mails. That's a position that I think is possible but actually quite novel; at the very least it's not a point to make casually.

  Two quick final points. First, the panel opinion has some interesting Stored Communications Act issues; the post is too long already, but the issues are worth noting and somewhat complicated for fellow SCA geeks out there. Second, by way of full disclosure, I vaguely recall that at some point early in the Quon litigation I was contacted by lawyers from both sides of the case and pointed both sides in the direction of some of the more obvious precedents raised by the facts.

Related Posts (on one page):

  1. Orin Is Too Humble To Mention This,
  2. Ninth Circuit Finds Fourth Amendment Protection in Text Messages:
J. Aldridge:
Crazy how private actors can be held to violate any of the federal bill of rights these days. Talk about a dysfunctional judiciary!
6.18.2008 5:49pm
OrinKerr:
J Aldridge,

I believe this part of the law suit was against the government for gaining access to the protected messages; the fact that the provider is the first name in the list of appellees doesn't mean the Fourth Amendment claim was against them.
6.18.2008 5:53pm
Jay:
Off-topic question--does anyone know what the 9th Circuit's slip opinion pagination indicates? Is it total pages issued this year, or this term of court, or something like that? No other circuit does this, I don't think.
6.18.2008 6:11pm
Jacob Berlove:
Prof. Kerr,

If I'm not mistaken, e-mails ae routinely scanned by many providers of the service in order to send ads the consumer might be interested in. Doesn't this alone distinguish them from snail mail or phone conversations, and diminish the REA in the content of the messages? Or does the sender of a Randolph style right to pick and choose which third party gets to read his or her e-mail?
6.18.2008 6:29pm
Dilan Esper (mail) (www):
Jay:

The page number reflects the amount of money bet in the Ninth Circuit's "Supreme Court reversal pool", in which judges and clerks attempt to guess which decisions will get reversed this term, and win valuable prizes.

For details, check Alex Kozinski's website.
6.18.2008 6:30pm
Anderson (mail):
Doesn't this alone distinguish them from snail mail or phone conversations

Only until those are scanned, too.

"Based on your just-concluded conversation, we believe you might be interested in a subscription to Bovine Love, the magazine of cow fanciers. Press 1 to hear more about this EXCITING offer ...."
6.18.2008 6:41pm
zuch (mail) (www):
This decision makes sense. Call content is covered under Title III, and requires a search (or wiretap) warrant.

Call data, meaning the identifying information as to who called who, is covered under "trap and trace"/"pen register" laws that require a lesser standard of proof to obtain.

Thus, while call data (and "call data records"; the CDRs that the phone company uses for usage/billing purposes) are obtainable through subpoenas, once again, a Title III or search warrant should be necessary to obtain the content of the calls/text-messages/e-mails.

The majority if all "wiretaps", FWIW, are call data warrants, and only those that look promising or show the additional cause get the full Title III treatment.

A while back, the FBI had been angling for inclusion of the actual message text in "call data" under CALEA, and the equipment I worked on had a software "switch" settable in it, so that we could include or not the text of the message for a "call data" ("trap and trace") wiretap, pending the outcome of the dispute as to how such should be handled under CALEA. The FBI/gummint had said it should be considered "digital signaling" and so to be "call data", but any reasonable functional analysis would classify it as "call content" obviously.

Where it gets murkier is areas such as post-cut-through digits. CALEA requires that digit signals ["touchtones"] that are used after the call it "cut through [answered by the called party] be extracted and included in the call data as just more "signaling". In some situations, this might make sense, such as accessing an extension after the main IVR switchboard is accessed. But in others, such "touchtones" should be considered call content (for example, entering PINS and account numbers for banking-by-telephone, and instructing that money be transferred between accounts)>

In the era of Web/HTTP/IP "comunications", we also have some grey areas. One might think of the URL you typed as just the "address" of the person/company/entity you want to communicate with, but with searches, language specifiers, and other qualifiers embedded in the URL (look, for instance, at the URL that shows after you type in a Google search), there's quite a bit of what is arguably considered "content" in just the URL you asked for. So should your URLs be considered "call data" or "call content". I go for the latter.

Cheers,
6.18.2008 6:45pm
J. Aldridge:
Orin, I thought it was a "City" and not some federal agency that had accessed them. I refer to "cities" as private actors because that is how John Bingham referred to municipals.
6.18.2008 6:50pm
OrinKerr:
J. Aldridge,

Who is John Bingham?
6.18.2008 6:55pm
J. Aldridge:
Orin, Bingham was the floor manager and primary author of the 14th amendments first section.
6.18.2008 6:57pm
Lior:
The passage quoted is misguided regarding technical side of e-mail processing (not that this should matter for the legal argument). On the telephone network there used to be a clear distinction between addressing information (transmitted when dialing) and the content of the call. This is less so with today's digital network. For email this is false. An email "message" is a single text file containing both the addressing information and the content of the message. In that it is quite similar to a postcard.

Are postcards sent through the mail considered "private" for 4th amendment purposes? If so, then the same should hold for email. Otherwise, the situation becomes tricky.
6.18.2008 6:57pm
OrinKerr:
Oh, wait, I assume you mean John Bingham who drafted the Fouteenth Amendment. I don't know what he said about municipalities, but city officials are state actors under the Fourth and Fourteenth Amendments.
6.18.2008 6:58pm
CDR D (mail):
Not trying to hi-jack the thread, but in view of the following...

>>>"The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored."<<<

...I have to wonder if a GPS user can have a reasonable expectation of privacy with regard to the user's whereabouts at any given time. It seems to me if the satellites can provide the user's position to the user, they can provide the same to third parties.
6.18.2008 7:03pm
J. Aldridge:
Orin, yes, that is the common understanding today, but Bingham had the view for 14th enforcement purposes that municipals were the creature of state law which under the constitution were treated no different than "any other private actor."
6.18.2008 7:07pm
cboldt (mail):
-- An email "message" is a single text file containing both the addressing information and the content of the message. --
.
Not at all times in its life. An e-mail is a unit roughly as you describe when it is drafted, and it is as reconstructed by many (maybe most or even all) mail readers - but as stored communications at intermediate points, the message is broken into "envelope" and "message" portions. See sendmail, postfix and similar Mail Transfer Agents.
6.18.2008 7:08pm
zuch (mail) (www):
lior:

The passage quoted is misguided regarding technical side of e-mail processing (not that this should matter for the legal argument). On the telephone network there used to be a clear distinction between addressing information (transmitted when dialing) and the content of the call. This is less so with today's digital network. For email this is false. An email "message" is a single text file containing both the addressing information and the content of the message. In that it is quite similar to a postcard.

Are postcards sent through the mail considered "private" for 4th amendment purposes? If so, then the same should hold for email. Otherwise, the situation becomes tricky.


Not entirely true. The headers are easily distinguished (open an e-mail in Outlook, and click on "View/Options" to get the Internet header). One might suggest that the "Subject" field might be "call content" as well, but certainly the body is. Unlike a postcard, it takes a bit of technical savvy and equipment to snoop the e-mail, and this equipment (just like CALEA equipment for phones) can be required to separate headers from content.

Cheers,
6.18.2008 7:22pm
Guest12345:
Lior: What cboldt said, SMTP has clear separations between header (referred to as envelope in the relevant RFCs) and message.

CDR D: The GPS constellation satellites just transmit time signals to the entire visible hemisphere of the earth continously. They don't have any clue as to which GPS receivers are receiving that signal or their positions. Position is determined in the receiver by measuring the error of the time received from each satellite.
6.18.2008 7:26pm
eck:
The GPS constellation satellites just transmit time signals to the entire visible hemisphere of the earth continously. They don't have any clue as to which GPS receivers are receiving that signal or their positions.

Just so. The satellites are best analogized to lighthouses and marine buoys: it's not their job to figure out who's out there (or where they are). That task is left to individual watercraft (and GPS receivers).
6.18.2008 7:36pm
zuch (mail) (www):
CDR D:

...I have to wonder if a GPS user can have a reasonable expectation of privacy with regard to the user's whereabouts at any given time. It seems to me if the satellites can provide the user's position to the user, they can provide the same to third parties.

E-911 legislation requires mobile phone companies to use "best available technology" to ascertain phone location (and this will improve in accuracy as "E-911" phase 1, phase 2 and later phases are implemented) for reporting when the caller makes an emergency call. But it also requires that such location information be accessible for legitimate LEA surveillance (with appropriate court order). Location information, AFAIK, is covered under the "call data" portions of CALEA, and thus a simple "trap and trace" court order will give the LEAs access to tracking information. At the very least, the "serving MSC" information (which gives rough location), when available, was passed to LEAs as "signaling" (that is to say, "call data") even prior to "E-911".

Cheers,
6.18.2008 7:37pm
CDR D (mail):
Thanks for the above responses.

I had to wonder because I just acquired a GPS receiver, and when I registered it with the manufacturer on-line, IT KNEW when I had accessed the satellite system for a "test". That was two days before I registered.

Thanks, guys.
6.18.2008 7:53pm
Chuck Jackson (mail):
zuch wrote:

One might think of the URL you typed as just the "address" of the person/company/entity you want to communicate with, but with searches, language specifiers, and other qualifiers embedded in the URL (look, for instance, at the URL that shows after you type in a Google search), there's quite a bit of what is arguably considered "content" in just the URL you asked for. So should your URLs be considered "call data" or "call content". I go for the latter.

====================

Here's what happens. When you click on a URL in your browser, the browser first looks up the IP address for the host (e.g., the IP address for volokh.com is 66.98.172.69). It then opens a TCP/IP connection to port 80 (usually) at that IP address and starts sending HTTP commands over that TCP/IP connection. For example the command to get this comment thread is sent as text over the TCP connection. That text is approximately:
. Request Method: GET
. Request URI: /posts/1213821576.shtml
. Request Version: HTTP/1.1

In some sense you could regard this information specifying the web page as a form of address information, but it is clearly content in the TCP/IP traffic sent between the user's computer and port 80 at IP address 66.98.172.69.

If the operator of the webserver were to set up the web server to use https rather than http, then casual observers (and probably many government agencies that can get subpoenas) would not be able to read the content exchanged over the TCP/IP connection. See http://en.wikipedia.org/wiki/Https

Chuck
6.18.2008 8:14pm
Frater Plotter:
Mail headers and the SMTP envelope are not the same thing.

The envelope is just what is sent between mail servers in advance of the message itself, and includes just the sender and recipient addresses. The envelope information is not stored in the message itself, which is why you can "Bcc:" messages -- send a copy to someone who is not named in the headers.

(The input field for "Bcc:" looks like a header in your mail program when you're composing a message, but it is not stored as a header when the message is sent. If it were, then the Bcc-ed recipients would be visible to all recipients.)

The SMTP envelope is closely analogous to pen-register and ANI information in the telephone system: it just identifies the sender and recipient(s).

However, the mail system does do various things to the header itself as well. For instance, every mail server that handles the message adds a "Received:" header line, which system administrators can use to track down communications problems between mail servers. Likewise, usually the first mail server to get a message will check that it has a "Date:" header line and other niceties. However, many of these header lines can be filled with false data by the sender; spammers frequently do so, in violation of the CAN-SPAM act.

And then on top of that you have headers added, and body content altered or removed, by other automated systems such as spam filters, mail firewalls, and virus scanners.

Basically, mail is complicated, and it has gotten more complicated over time.
6.18.2008 8:27pm
eck:
But it [E911 legislation] also requires that such [phase 2] location information be accessible for legitimate LEA surveillance (with appropriate court order).

False.

Location information, AFAIK, is covered under the "call data" portions of CALEA, and thus a simple "trap and trace" court order will give the LEAs access to tracking information.

Two problems with these claims. First, a careless reader might assume you are saying that CALEA requires carriers to be able to deliver precise location data (E911 phase 2). That's not so, as the DC Circuit notes in the 2000 USTA opinion. Rather, CALEA only
requires carriers to make available to law enforcement agencies the physical location of the nearest antenna tower through which a cellular telephone communicates at the beginning and end of a call.
As for getting wireless location data from a carrier with a "simple" trap and trace order, I refer you to the prohibition in 47 USC 1002.
6.18.2008 8:28pm
zippypinhead:
As one of those SCA/ECPA "geeks" lurking about in the underbrush, I'm curious to learn Professor Kerr's thoughts on the effect Quon might have on the current ability of governmental agencies to obtain stored content from an RCS without probable cause/warrant. For example, what does this case do to the 180 day storage threshold in current law? For those not familiar with the statutory scheme, currently. government agencies can use simple subpoenas - including even civil administrative subpoenas - to obtain content in storage over 180 days. Is there an argument that the distinction nevertheless survives?

And just to throw some gasoline on the fire, under current law one can couple the 180-day threshold with the ability to issue 90-day 2703(f) preservation letters (which can be renewed for additional 90-day periods) before issuing the subpoena, and the law effectively permits one to get around the probable cause requirement, at least where time is not of the essence.

And what's the status of the 6th Circuit's Warshak en banc rehearing - haven't heard much about that lately? One could easily conjure up a circuit split if that rehearing is still alive.

A subject for another in depth post on Volokh, perhaps?
6.18.2008 8:52pm
Ex-Fed (mail) (www):
RV'D n00b kthxbye lol
6.18.2008 8:58pm
gattsuru (mail) (www):
Here's what happens. When you click on a URL in your browser, the browser first looks up the IP address for the host (e.g., the IP address for volokh.com is 66.98.172.69). It then opens a TCP/IP connection to port 80 (usually) at that IP address and starts sending HTTP commands over that TCP/IP connection. For example the command to get this comment thread is sent as text over the TCP connection. That text is approximately:
. Request Method: GET
. Request URI: /posts/1213821576.shtml
. Request Version: HTTP/1.1

In some sense you could regard this information specifying the web page as a form of address information, but it is clearly content in the TCP/IP traffic sent between the user's computer and port 80 at IP address 66.98.172.69.


At least for the initial connection-building, the name request to your ISP's DNS address would probably be more correctly understood as consisting of purely address-oriented information -- it usually only contains the destination site you want to look for, and where you come from, in some cases with authentication information strapped onto the side.

This is fairly similar to the initial call set-up feature on cell phones or cell phone text messages. The cell phone number does not automatically connect between two company FXSs. A cell phone could, at one time, be connected to literally any cell phone tower, and thus any exchange, within the terms of the cell user's contract. Those exchanges update a centralized service as to who is connected where, and incoming calls first check at the centralized services before calls can be set up. Text messages use a similar system.

I'm not a particular fan of the court's doctrine from a technical viewpoint : I run a VOIP server and multiple e-mail servers, and from my experience with those services, the court is effectively finding a right to privacy for a man yelling across the street. Not only does this present a non-trivial cost to 'respecting' the observed rights of others (in our cases, stupid amounts of paperwork informing individuals use of services indicates willingness to be monitored), it allows and encourages individuals to believe communications are private regardless of how much that is actually the case. As long as the populace finds e-mail to be important and private, it's protected under this doctrine, but that's not great at preventing unscrupulous individuals from easily (and in some cases legally) monitoring such things.

That said, this does seem to fit the doctrine fairly well.
6.18.2008 8:59pm
Duncan Frissell (mail):
Orin. We know that the courts since the beginning of the 20th century have held that an individual has no 4th amendment interest in financial records held by a third party (such as one's bank).

Does a decision like this one mean that if we structured a financial exchange system without an intermediary (or without an intermediary in the jurisdiction) using something like digital cash where all transactions were simply messages between end users, then you could make payments in a fourth-amendment-protected environment?
6.18.2008 9:20pm
eck:
In some sense you could regard this information specifying the web page as a form of address information, but it is clearly content in the TCP/IP traffic sent between the user's computer and port 80 at IP address 66.98.172.69.

I don't think that fact by itself is especially persuasive. After all, all of the TCP/IP info -- in your example, TCP port 80 at a given IP address -- is "content" from the perspective of the data link layer (Ethernet, token ring, etc.). I suspect most informed commentators would still say that source/destination IP addresses are addressing info, layer encapsulation notwithstanding.
6.18.2008 9:43pm
George Weiss (mail) (www):
can someone explain what the officer's damages were?

why is this case in court?

is he trying to sue for 1 dollar so he can get the court to say (in a diffrent context) that the evidence used against him in the disciplinary proceeding for wasting time and sending mildly inappropriate material
6.18.2008 10:05pm
Waldensian (mail):

I have to wonder if a GPS user can have a reasonable expectation of privacy with regard to the user's whereabouts at any given time. It seems to me if the satellites can provide the user's position to the user, they can provide the same to third parties.

As several posters have mentioned, the GPS satellite network doesn't actually track users of the GPS signals.

However, the same basic question is presented by air traffic control in the U.S., which does of course actually track aircraft, AND makes information about tracked flights available to the public in real time.

I believe that corporations who wish to mask the movement of corporate aircraft (e.g., to avoid revealing executive travel related to a possible merger) can opt out of this system.

Here's the kind of thing I'm talking about.
6.18.2008 10:26pm
zuch (mail) (www):
eck:

[Arne]: But it [E911 legislation] also requires that such [phase 2] location information be accessible for legitimate LEA surveillance (with appropriate court order).

[eck]: False.

[Arne]: Location information, AFAIK, is covered under the "call data" portions of CALEA, and thus a simple "trap and trace" court order will give the LEAs access to tracking information.

[eck]: Two problems with these claims. First, a careless reader might assume you are saying that CALEA requires carriers to be able to deliver precise location data (E911 phase 2). That's not so, as the DC Circuit notes in the 2000 USTA opinion. Rather, CALEA only

requires carriers to make available to law enforcement agencies the physical location of the nearest antenna tower through which a cellular telephone communicates at the beginning and end of a call.


The equipment I'm familiar with will provide LBS to LEAs that gives "best available technology" (which may include TDOA or GPS-assisted location).

[eck]: As for getting wireless location data from a carrier with a "simple" trap and trace order, I refer you to the prohibition in 47 USC 1002.

"Serving System" messages are considered "call data" and available to the LEAs under the "trap-and-trace" orders. They provide, at the very least, a general geographical area (as served by a MSC). Maybe the equipment is doing the wrong thing, but then maybe you'd better talk to the manufacturers, 47 USC § 1002 notwithstanding.

That's just what I see. But thanks for your information.

FWIW, I know that a fair part of responses of telecom legal is emergency requests for location (parents looking for kids, someone missing, etc.).

Cheers,
6.18.2008 10:33pm
zuch (mail) (www):
eck:

I don't think that fact by itself is especially persuasive. After all, all of the TCP/IP info -- in your example, TCP port 80 at a given IP address -- is "content" from the perspective of the data link layer (Ethernet, token ring, etc.). I suspect most informed commentators would still say that source/destination IP addresses are addressing info, layer encapsulation notwithstanding.

How would that compare to the requirement for DDE post-cut-through for phone calls (see my comment above)?

Cheers,
6.18.2008 10:37pm
eck:
The equipment I'm familiar with will provide LBS to LEAs that gives "best available technology" (which may include TDOA or GPS-assisted location).

I note simply that the capability of the equipment you're familiar with is not equivalent to "there is a legal mandate to provide X to law enforcement."

Maybe the equipment is doing the wrong thing

My personal opinion is that mere serving MSC (as reported by the HLR in the home MSC) is outside the scope of the section 1002 limitation. In any event, it looked as if you were saying more, i.e., that cell-site data (or handset lat/long) is available with a "simple" pen/trap order. If you're not saying that, I don't think we have a disagreement.

a fair part of responses of telecom legal is emergency requests for location (parents looking for kids, someone missing, etc.)

No doubt -- and fully consistent with the customer consent and/or life-and-limb provisions of the relevant federal statutes.
6.18.2008 10:53pm
eck:
How would that compare to the requirement for DDE post-cut-through for phone calls?

The prudent answer, it seems to me, is the one the D.C. Circuit provides in USTA: CALEA mandates carrier technical capabilities, not standards for lawful access (e.g., to post-cut-through digits).
6.18.2008 10:58pm
zuch (mail) (www):
eck:

[Arne]: How would that compare to the requirement for DDE post-cut-through for phone calls?

The prudent answer, it seems to me, is the one the D.C. Circuit provides in USTA: CALEA mandates carrier technical capabilities, not standards for lawful access (e.g., to post-cut-through digits).


Somebody did. I've had to put in CALEA DDE equipment, and believe me, if they don't need it, the telcos aren't going to pay for it.

Cheers,
6.19.2008 12:55am
kiniyakki (mail):
If A text messages to B, and B prints a transcript off and gives it to the police, has A's rights been violated?
6.19.2008 1:15am
George Weiss (mail) (www):
kiniyakki-not the case here-neither party of the communication gave consent for that degree of the search of the text messages.

btw-your question is essentially the same as post mail. a sends snail mail to b and b shows it to police-has A's rights been violated-not in the established privacy area of snail mail-and not here (now that text messages are basically being treated like regular mail or email-with content having 4th amendment protection and envelope info not)

im pretty sure that generally one party to a 4th amendment protected conversation can give consent.
6.19.2008 1:56am
Tom952 (mail):
Your ISP can get to all of your messages unless you do something to secure them. To me, that makes email and text messages seem analogous to postcards, in that they are open to me be read anyone in the mail transportation and delivery system who wishes to look at them.

You can utilize encryption to send secure emails and messages, technically putting the message in a sealed envelope so to speak, and only then, it seems to me, should you have any expectation of privacy.
6.19.2008 9:44am
gattsuru (mail) (www):
If A text messages to B, and B prints a transcript off and gives it to the police, has A's rights been violated?


Constitutional rights, no -- there's right to privacy itself does not protect anything a lawful party to the conversation is willing to divulge. There are some statutory protections beyond that point, similar to local wiretapping laws (some states require both individuals know they're being recorded) but that's a statutory thing rather than a constitutional one.
6.19.2008 11:29am
jazzed (mail):
Anderson: "Based on your just-concluded conversation, we believe you might be interested in a subscription to Bovine Asinine Love, the magazine of cow ass fanciers. Press 1 to hear more about this EXCITING offer ...."

Kozinski-fied, for our enjoyment.

Now, to more serious matters, I'd like to read both the case and Orin's article to determine how they might play into strategy for the embattled Kwame Kilpatrick, Hip-Hop Mayor of Detroit, MI. Given that I'm at my locus of employ and won't have that opportunity for several hours yet, mayhap someone else familiar with the issues could opine for us. Salacious text messages are alleged to be proof of his and his lover's perjury in a civil trial and are a root cause for the current attempts to remove him from office.
6.19.2008 12:53pm
zuch (mail) (www):
eck:

[Arne]: How would that compare to the requirement for DDE post-cut-through for phone calls?

The prudent answer, it seems to me, is the one the D.C. Circuit provides in USTA: CALEA mandates carrier technical capabilities, not standards for lawful access (e.g., to post-cut-through digits).


I looked it up (it's a 2000 case). The objection to the FCC rules was primarily that they weren't consistent with the enabling legislation, not that they conflicted with other rules.

As for J-STD-025, it refers to "call content" and "call data", and such "signalling" events are carried through call data channels. In general, call data is what you get with a "trap and trace" court order.

I'd also note that the serving system information requirement was upheld, in the face of a 47 USC § 1002 challenge that location was not to be given. As I said before, "Serving System" is part of call data.

Now, looking a bit more carefully, I see that DDE may be required, but not available under just a "trap-and-trace".

Cheers,
6.19.2008 10:09pm
Greg D (mail):
Sorry, but this decision is, like so many other 9th Circut decisions, complete crap.

The police force paid for the text messages, not the individual suing. You should not have a "privacy right" to anything done on someone else's dime.

If the Sgt had paid for the text messaging, he'd have a case. Since he didn't he doesn't, or at least shouldn't.
6.20.2008 1:56am
PeggyH (mail):
All,

What if party A sends a text message to party B, Party B gets phone confiscated and text messages read (without search warrant) determining there was criminal activity going on. Would party A have a REP to texts sent to party B and could texts sent to party B be used against party A?
6.20.2008 10:15am
Benjamin Wright (mail) (www):
Orin: The Quon case may give employers incentive to use repetitive privacy disclaimers. What do you think? —Ben See reptitive privacy disclaimer examples
6.20.2008 5:54pm