US: Important Case ...
 
Notifications
Clear all

US: Important Case on Search Warrants

15 Posts
5 Users
0 Reactions
624 Views
(@seanmcl)
Posts: 700
Honorable Member
 

Depending on your jurisdiction, any message that arrives after the execution of the warrant may be considered still part of the telecommunications system, and require a specific wiretap warrant. It's the same concept as how unopened mail is different to opened mail in the real world.

Well, the operative words are "Depending on your jurisdiction". For example, in some jurisdictions, the wiretap law applies to interception of transmissions, but does not apply to the transmissions, themselves. For example, in Massachusetts, the Supreme Court decided that the wiretap laws did not apply to Instant Messages, e-mail, and text messages because the law was restricted to interception of transmissions, not of the stored message, and text messages are, presumably, stored.

In Pennsylvania, the wiretap laws have been interpreted to apply to the transmission of e-mail but not the examination of e-mail once it has been delivered.

Examining a cell text message would be more akin to examining an e-mail in that when you read it on the phone, the transmission has already occurred. Implicit in a lot of wiretap laws is that voice, radio and cell phone voice transmissions are ephemeral, i.e., they last only for the time it takes to transmit them and, therefore, there is a reasonable expectation that the conversations are private.

This does not always apply to stored messages, such as text messages, since these, by their nature, are persistent.

A similar situation exists with answering machines. Courts have ruled that persons who leave messages on answering machines have no reasonable expectation of privacy because they can't know who will hear them. Remember the case of Dean Tistadt whose wife left a message on the cellphone of a student calling him a "snotty-nosed kid" after the student called Tistadt's home asking if school would be cancelled due to a snowstorm?

He (the student), posted the conversation to YouTube and there was some brief discussion, then, about whether this violated wiretap laws but the decision was that it did not because she had the expectation that the message would be stored and no implied assurance as to who would hear it.

 
Posted : 14/09/2009 2:25 am
(@patrick4n6)
Posts: 650
Honorable Member
 

The operative word is AFTER, as in after the execution of the search warrant. A message stored on a device at the time of the warrant is certainly akin to an opened letter, but if you continue to receive messages after that, you're effectively intercepting.

It is most certainly not in plain view, because to re-do the analogy of postal mail, you are collecting the mail from the mailbox, not something that the subject has already brought into the house and opened.

 
Posted : 14/09/2009 3:03 am
(@seanmcl)
Posts: 700
Honorable Member
 

It is most certainly not in plain view, because to re-do the analogy of postal mail, you are collecting the mail from the mailbox, not something that the subject has already brought into the house and opened.

I disagree, though I have no case law to support or refute it and I suspect that you don't, either.

Even if a message arrives in the mail, it is in an envelope and, therefore, opening the envelope without probable cause would be a problem. But if the contents were on a postcard, where the mail deliverer could read them, they would hardly be subject to the expectation of privacy.

Actually, I disagree with this

The operative word is AFTER, as in after the execution of the search warrant. A message stored on a device at the time of the warrant is certainly akin to an opened letter

If the search warrant only included messages related to A, you have little to support your recovery of messages related to B. However, if you are a witness to a crime being committed, or to someone who is admitting the commision of a crime, you have probable cause.

And, I'll repeat my claim that text messages may be illegal to intercept but the cellphone is a storage device, like a computer. And, as such, you could argue that you are not intercepting the message but merely reading it as though it had been delivered on a postcard. The persom who sends the message has no expectation of privacy because the message is not enclosed in a protective envelope (unlike a letter).

 
Posted : 14/09/2009 5:21 am
(@Anonymous)
Posts: 0
Guest
 

The [person] who sends the message has no expectation of privacy because the message is not enclosed in a protective envelope (unlike a letter).

I must respectfully disagree.

The "envelope" in text messaging is the point-to-point circuit through which the message is transmitted and received. I fully expect that any and all of my communication over wired or wireless phone systems, voice or text, are private. Sure, I know my conversations *can* be intercepted, but I expect that they are not.

In, Quon v. Arch Wireless Operating Company, Inc., the Ninth U.S. Circuit Court of Appeals held that users of text-messaging services do, in fact, have a reasonable expectation of privacy as to the contents of the messages.

 
Posted : 14/09/2009 6:35 am
(@seanmcl)
Posts: 700
Honorable Member
 

In, Quon v. Arch Wireless Operating Company, Inc., the Ninth U.S. Circuit Court of Appeals held that users of text-messaging services do, in fact, have a reasonable expectation of privacy as to the contents of the messages.

Read the opinion, carefully. The Court did not rule that e-mail and text messages were unconditionally protected under the Fourth Amendment. In fact

Ultimately, as to the Fourth Amendment claims, the district court found that, in light of the OPD’s informal policy that the text messages would not be audited, Quon had a reasonable expectation of privacy in his messages. Quon, 445 F. Supp. 2d at 1140-43. Our unanimous panel agreed. Quon, 529 F.3d at 906 (“We agree with the district court that the Department’s informal policy that the text messages would not be audited if he paid the overages rendered Quon’s expectation of privacy in those messages reasonable.”).

And, later

The opinion in fact adheres to O’Connor’s holding, explicitly acknowledging that “ ‘[t]he operational realities of the workplace . . . may make some employees’ expectations of privacy unreasonable,’ ” and that privacy “ ‘may be reduced by virtue of actual office practices and procedures, or by legitimate regulation,’

In fact, the appeals court ruled that the seach was "reasonable at its inception" because the stated purpose was to determine whether or not the actual character limit for text pagers needed to be increased to meet the demands of work. The person ordering the search took the top two officers, by volume of pager traffic, and looked at their messages, ostensibly for the purpose of determining whether the limit should be increased. The court viewed this as reasonable. What was unreasonable was the eventual use of these messages for disciplinary action.

Read, also, the dissenting opinion, in which it is mentioned that other Circuit Courts had held different opinions as well as the Supreme Court.

 
Posted : 14/09/2009 6:57 pm
Page 2 / 2
Share: