Today’s Investigative Special Report July 20, 2012 “Dealing With Today’s Law Enforcement Specialized Investigations” “Are Your Text Messages Private or Public”

By Lawrence W. Daly, MSc

Image representing iPad as depicted in CrunchBase
Image via CrunchBase

Technological advancements are creating multiple issues in reference to the obtaining of the techno gadgets and the information which is inside these gadgets. Due to the many technological circumstances which law enforcement officials and courts are dealing with are complicating, if not confusing. The manner in which individuals are being apprehended by law enforcement, criminally charged by prosecutors, citizens are defending themselves against charges stemming from investigative findings dealing with their text messages and the information in other techno gadgets such as the iPad, Kindle and others. 

The decision to call or text your friend, family, or business associate may not be as private as you once believed. In a decision by the Supreme Court, if law enforcement seizes a telephone in the performance of their duties, law enforcement has the right without a warrant to review the text messages on that telephone.

Painting in the Supreme Court chamber in the P...
Painting in the Supreme Court chamber in the Pennsylvania State Capitol in Harrisburg, Pennsylvania, USA (Photo credit: Wikipedia)
In the State of Pennsylvania, “The state Supreme Court has agreed to hear arguments in the case of a central Pennsylvania woman convicted of drug offenses, largely on the strength of text messages found on her cellphone that prosecutors said were evidence she arranged drug deals”, according to The Morning Call, May 28, 2012.

In the State of Nevada, In Rodriguez v. State, the Nevada Supreme Court had to determine how a party can establish the author of a text message in order to satisfy the law, NRS 52.015; which is the law which requires that in order for evidence to be admissible in court, it must be authenticated i.e. the party offering the evidence must prove that the evidence is what it is claimed to be.”

In this case the court had to examine if the evidence established that Rodriguez authored the texts were used to prove that he assaulted the victim. The court supported that Rodriguez did in fact author two of the texts. However, the court didn’t support that ten other texts were authored by Rodriguez. Rodriguez’s conviction was upheld by the court due to other evidence presented.

In the State of Washington, Roden v. State, the Court of Appeals of the State of Washington, Division II, stated that the officer who took Roden’s mobile telephone and responded to an individual for a drug buy, was a violation of Washington’s privacy act, chapter 9.73 RCW, by intercepting his private text messages to the dealer. The Court found in favor of the actions of the law enforcement officer.

In the State of California, in City of Ontario v. Quon, the Supreme Court ruled that a California police 
The interior of the Wasington State Supreme Court
The interior of the Wasington State Supreme Court (Photo credit: Wikipedia)
chief’s search of an officer’s questionable text messages was allowable because it served as a “legitimate work-related purpose.” The Court stated that the officer, Sgt. Jeff Quon, argued that the department’s snoopiness violated his Fourth Amendment’s protection against unreasonable searches. But the court said Quon should not have assumed that all of the text messages he sent while on duty as a policeman were “in all circumstances immune scrutiny.” Quon had been sending sexually explicated text messages to his wife and mistress using the department-issued pager.

Technology in the field of communication has developed into a multitude of methods and techniques to communicate. As a citizen if you are arrested for another crime and you have one of these techno gadgets on you, the police have the right (under lawful circumstances) to review what is considered public.

The court would not allow the law enforcement officer to perform a search of the citizen’s techno gadget’s contact database, the log, and so forth, if the action of the officer was invasive.
In the above cases, the telephones displayed the text messages where the law enforcement officer could view the message or answered the telephone. In the civil case, Quon was using the police department’s
The headquarters of the Supreme Court of Nevad...
The headquarters of the Supreme Court of Nevada in Carson City. (Photo credit: Wikipedia)
 telephone and under these conditions the City of Ontario had a right to properly view the telephone contents.

Law enforcement during certain circumstances in a criminal investigation has found that text messages can be an integral aspect of the investigation. The problem is due to the limitations of the telephone and the capabilities of the telephone to store only a specific amount of telephone calls, contacts, and so forth. However, the newer telephones such as the iPhone have made storage less of a problem.

The other problem law enforcement is facing is the ability to obtain an administrative search warrant or subpoena to obtain records from the vendors e.g. Sprint, Verizon and others. There are specific companies who allegedly don’t store records. So retrieving specific telephone calls may not be possible.
There are many individuals who have called their legislatures to update the law under the Electronic Communication Privacy Act, which specifies standards for law enforcement access to electronic communications and associated data. Watchdog groups are being formed to combat law enforcement’s alleged abuse of individuals Fourth Amendment’s rights in reference to how they access and retrieve the information on someone’s techno gadget.

At this time it appears the courts are supporting a majority of law enforcement’s action when it comes to what they can do with a citizen’s techno gadget and the information in that gadget. Text messages apparently are the main issue of the court’s decisions, but as technology creates and innovates, obtaining text messages by law enforcement officials when it comes to Fourth Amendment issues, may change. The determination of what is public or privacy apparently will become a case by case preview by the court.

Lawrence W. Daly           
Puyallup, WA

Description: Larry-Daly_01

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