The Capitol Record

Text message privacy case makes its way to state Supreme Court

Is an iPhone text message the modern version of a letter? That question was debated in oral arguments Tuesday in front of the Washington Supreme Court, which is considering two cases that deal with the expectation of privacy when sending a text message.

After arresting a suspected drug dealer last year, a police detective saw an incoming text message on the dealer’s iPhone screen that said: “Hey whats up dogg can you call me i need to talk to you.”

The detective typed out a response to the text message, pretending to be the dealer. They arranged to meet at a parking lot, where the person who was sending the text messages, Shawn Hinton, was arrested for attempting to possess heroin. Police also found an old text message from Jonathan Roden on the iPhone and started a new text conversation that led to his arrest.

Hinton and Roden claim that their Fourth Amendment rights were violated when the police searched the text messages without a warrant. The Fourth Amendment protects against unreasonable searches and seizures.

On Tuesday, the state’s high court heard arguments in both the cases.

Attorney John Hays argued on behalf of Hinton, saying that the text message is the equivalent of a letter, which is protected by the Fourth Amendment. “Until the recipient reads it, you as the writer have a right to privacy,” Hays said.

Justice Debra L. Stephens noted that the iPhone was not protected by a password and the incoming text message simply popped up on the screen. “Why is that inside the envelope, not outside the envelope?” Stephens asked.

Hays replied that he’s not arguing that the message flashing across the screen was illegally obtained. “That was open view,” he said. “But when they open the phone and start using it, they are opening the letter and looking inside.”

Hays said he believes that police should have a warrant to “manipulate” a phone.

Attorney Sean Brittain laid out the state’s case. He argued that there is an “inherent risk in a text message” that someone else might read it, giving the hypothetical example of a husband who hands his cellphone to his wife to respond to a text because he’s driving.

Brittain argued that “privacy ends at the moment the letter is delivered.” Whether it’s an email or text or letter, he says the sender has no control over what happens to it next. For example, the sender can’t force the recipient to delete an email chain, he said.

“Once it has been delivered, that’s where privacy interest is lost,” Brittain said.

The state Supreme Court will issue a decision at a later time. TVW airs all Supreme Court cases. Watch the Hinton arguments here, and the Roden arguments here.

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