February 28, 2014 | By Hanni Fakhoury

Two New Decisions Strengthen Cell Phone Privacy in Texas and Washington

On back-to-back days this week, residents in Texas and Washington received some extra legal protection for the contents of their cell phones. These decisions, while only binding on law enforcement within each respective state, could play an important role on the ongoing debate on cell phone privacy specifically, and applying legal protections against unreasonable searches and seizures to new technologies generally. 

Texas: a cellphone is not like a pair of pants or shoes

First, the Texas Court of Criminal Appeals ruled in State v. Granville that an inmate locked in jail maintained an expectation of privacy in the contents of his cell phone even when the phone was out of his custody and in the control of the jail guards. A Huntsville police officer arrested high-school student Anthony Granville on a misdemeanor charge, and he was locked up in jail. Three hours after his arrest, a different officer than the one who arrested him retrieved Granville's phone from the evidence locker and, without a warrant, looked through the contents of the phone for evidence of an unrelated crime.

The government attempted to justify the search by claiming that, similar to clothing worn by an inmate, once the phone was in the control of the jail officials, Granville no longer had any expectation of privacy in its contents. We filed an amicus brief explaining that a cell phone really isn't anything like a pair of pants given the immense amount of data stored on the phone, meaning that police needed to get a warrant to search it. The high court agreed with us, with Judge Cathy Cochran writing unequivocally:

[W]e conclude, as did the court of appeals, that a cell phone is not like a pair of pants or a shoe. Given modern technology and the incredible amount of personal information stored and accessible on a cell phone, we hold that a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely because that cell phone is being stored in a jail property room.

Washington: A text message is like a phone call or letter

The next day, the Washington Supreme Court issued a pair of decisions in State v. Hinton and State v. Roden finding that police violated state law when, after seizing a cell phone from a suspect during a drug investigation, it monitored and responded to incoming text messages, arranging drug deals with defendants Hinton and Roden.

The state argued that neither Shawn Hinton or Jonathan Roden had an expectation of privacy in the text messages once they were sent to someone else's phone. Instead, the state argued both men had assumed the risk that their messages could be intercepted by someone else or that the person they thought they were communicating with was really someone else. EFF filed amicus briefs in both cases, explaining that the society's expectation that police won't intercept their phone calls or postal letters extends to the 21st century equivalent, the text message. The court agreed, ruling that police were unauthorized to intercept the conversation, noting that 

unlike letters, which are generally delivered to the home where they remain protected from intrusion, text messages are delivered to a recipient's cell phone instantaneously and remain susceptible to exposure because of a cell phone's mobility. Just as subjecting a letter to potential interception while in transit does not extinguish a sender's privacy interest in its contents, neither does subjecting a text communication to the possibility of exposure on someone else's phone.

Cell phone privacy spreading across the country

These decisions come at a time when cell phone privacy is a hot topic in courts across the country and hopefully the strides made in Texas and Washington will be felt elsewhere. State courts are taking a more aggressive approach to safeguarding privacy than federal courts, especially when it comes to law enforcement searching and tracking cell phones. Last week, the Massachusetts Supreme Judicial Court ruled that police needed a search warrant to obtain historical cell site records from a cell phone provider. New Jersey's Supreme Court reached the same result last year. The Rhode Island Supreme Court heard argument in early February in State v. Patino, a case similar to Hinton and Roden, that involves whether a person has an expectation of privacy in text messages found on someone else's phone. State legislatures have been active too, with Maine and Montana passing legislation last year protecting cell phone location data, and Maryland and Wisconsin considering similar legislation this year. This week's decisions could also go a long way to bringing the law into the 21st century. 

Most importantly, the topic of cell phone privacy will shortly be before the U.S. Supreme Court, which is considering two cases this term on whether police can search a person's cell phone incident to their arrest. The U.S. Supreme Court would be wise to follow the lead of Texas and Washington. This week's decisions both appreciated the breadth of data stored on a cell phone meant it was foolish to analogize to physical items like a pair of pants or old cases involving antiquated technologies. They rejected the false notion that the mere act of exposing a phone or text message to someone else gives the government free reign to intrude and search through the reams of data on a cell phone. Hopefully the U.S. Supreme Court will make the same conclusions, ensuring that the right to privacy in a cell phone isn't just a local right but a national one.


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