October 23, 2013 | By Hanni Fakhoury

EFF Brief Argues Police Need Search Warrant to Read Text Messages

As text messages become a universal method for personal communication across the country, courts are struggling with applying quill-era Fourth Amendment principles to the modern form of communication. A new amicus brief we filed in a case before the Rhode Island Supreme Court explains that no matter the medium, conversations should be protected by the Fourth Amendment's prohibition against warrantless searches. That includes text messages stored on someone else's phone.

The brief was filed in State v. Patino. Police responded to a 911 call that a child in an apartment had stopped breathing. Once the child was en route to the hospital, police began looking through a cell phone left on the kitchen counter that belonged to the boy's mother. They found text messages between the mother and her boyfriend, defendant Michael Patino, that led the police to suspect Patino caused the child's injuries. The boy eventually died and after Patino was charged with murder, he moved to suppress the warrantless search of the text messages as a violation of the Fourth Amendment and the Rhode Island state constitution. In a 190-page opinion, the trial court found Patino had standing to challenge the warrantless search of the texts, determined the search violated the Fourth Amendment and the state constitution, and suppressed the texts and other evidence obtained as a fruit of that search. The state appealed that decision to the Rhode Island Supreme Court.

Our amicus brief argues that people have a reasonable expectation of privacy in their private text message conversations, regardless of the electronic device in which that conversation is stored. That's because the Fourth Amendment generally protects people not places, and more specifically protects conversational privacy. That flows directly from the seminal case Katz v. United States, which found that a warrantless wiretap of a phone booth violated the Fourth Amendment. It didn't matter that Katz didn't own the phone booth or the equipment used to make the call. He still had an expectation that his conversation wouldn't be intercepted by the police or other eavesdroppers.

The same should be true with text messages, which have supplanted phone calls as the primary means of communication for many people. Courts have increasingly accepted that electronic communications like emails and Facebook messages are protected by the Fourth Amendment despite the fact they are stored on someone else's property, such as a service provider's servers. While a person's text messages may sit on someone else's phone, most people assume that the recipient won't share the text with others without some affirmative action by the recipient. But here, where the phone was searched not through some specific action of the recipient or even with her permission, the Fourth Amendment's privacy protections apply. And that means the warrantless, unconsented search of the text messages violated Patino's Fourth Amendment rights.

Thanks to Mark Pogue of Edwards Wildman Palmer, LLP for serving as our local counsel in the case.

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