In November 2009, police officers in the state of Washington seized an iPhone belonging to suspected drug dealer Daniel Lee. While the phone was in police custody, a man named Shawn Hinton sent a text message to the device, reading, “Hey whats up dogg can you call me i need to talk to you.” Suspecting that Hinton was looking to buy drugs from Lee, Detective Kevin Sawyer replied to the message, posing as Lee. With a series of text messages, he arranged to meet Hinton in the parking lot of a local grocery store—where Hinton was arrested and charged with attempted possession of heroin.
Hinton wasn’t Sawyer’s only target. According to a court decision summing up the facts, “Sawyer spent about 5 or 10 minutes looking at some of the text messages on the iPhone; he also looked to see who had been calling. Many of the text messages that Lee’s iPhone had received and stored were from individuals who were seeking drugs from Lee.”
So Sawyer texted one of the individuals on the list and asked him if he “needed more.” The individual, Jonathan Roden, replied, “Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I’m only payin’ one eighty for it, instead of two Ts for two hundred, that way.” (The court helpfully explained that a “ball” is “a drug weight equivalent to approximately 3.5 grams.”)
But can cops legally do this with seized cell phones? When their cases went to trial, Hinton and Roden both argued that Sawyer had violated their privacy rights by intercepting, without a warrant, private communications intended for Lee.
But in a pair of decisions, one of which was recently covered by Forbes, a Washington state appeals court disagreed. If the decisions, penned by Judge Joel Penoyar and supported by one of his colleagues, are upheld on appeal, they could have far-reaching implications for cell phone privacy.
“No longer private or deserving of constitutional protection”
“There is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person’s iPhone,” Penoyar wrote in his decision. He pointed to a 1990 case in which the police seized a suspected drug dealer’s pager as an example. The officers observed which phone numbers appeared on the pager, called those numbers back, and arranged fake drug purchases with the people on the other end of the line.
A federal appeals court held that the pager owner’s Fourth Amendment rights against unreasonable search and seizure were not violated because the pager is “nothing more than a contemporary receptacle for telephone numbers,” akin to an address book. The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can’t be sure that the pager will be in the hands of its owner.
Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police. He claimed that the same rule applied to letters and e-mail. (Police would still need to seize or search a phone or computer legally, and phones are much easier for cops to seize than computers, which generally require a warrant.)
“On his own iPhone, on his own computer, or in the process of electronic transit, Hinton’s communications are shielded by our constitutions,” he wrote, referring to both the state and federal constitutions. “But after their arrival, Hinton’s text messages on Lee’s iPhone were no longer private or deserving of constitutional protection.” Penoyar rejected Roden’s privacy arguments on similar grounds.
Mobile phones exist in a constitutional grey area. The law has well-developed doctrines protecting the privacy of our desktop computers, landline telephones, and filing cabinets. But modern cell phones perform all of these functions, and more. If the police are free to rummage through any cell phone that falls into their hands, every arrest would automatically give the police access to a treasure trove of private data that they would otherwise need a warrant, based on probable cause, to obtain.
The Washington State decision is not unprecedented. Last year, the California Supreme Court ruled that no warrant was required for the police to peruse a cell phone that was confiscated after its owner tried to sell ecstasy to an undercover police officer. In that case, the police obtained a text message that seemed to confirm the government’s case against the suspect. Two justices of the California Supreme Court dissented from the ruling.
One judge dissented from the Washington State rulings as well. “Sawyer engaged in a continuing search when he first searched the contacts list on Daniel Lee’s iPhone to find Hinton’s phone number,” wrote Judge Marywave Van Deren in her dissent. Sawyer “used Lee’s iPhone to send and receive messages from Hinton. Under these circumstances, I would hold that Sawyer was required to obtain a search warrant.”
In a slightly different context, the Obama administration has also held that the contents of cell phones enjoy constitutional protection. Earlier this year, the Department of Justice filed a brief in a Maryland case arguing that Baltimore police had violated a man’s constitutional rights—including his Fourth Amendment right against unreasonable search and seizure—when they seized his phone and deleted videos he had taken of the officers’ conduct. via Ars Technica.