Privacy Surrounding Text Messages: An Uphill Battle for Courts

“I almost forgot, I have this ridiculous picture I’ve been meaning to show you,” I said, pulling out my iPhone.

I was sitting in a booth at the Flying Saucer Draught Emporium in downtown St. Louis, eating a late lunch with a friend.

I punched in the four-digit code to unlock my phone and found the picture.

“Here,” I said as I handed my phone across the table to him.

He laughed, looked at the picture for a minute and handed the phone back to me.

Thirty minutes later, as I was walking down the street alone, I pulled out my phone to make a call. When I unlocked it, I immediately realized that my friend had sent that picture from lunch to himself via text message.

I was by no means upset, but I was surprised, and somewhat unnerved, by the fact that I did not even notice him doing it.

This carefree ability to hand over my smartphone, what some would call a “life line,” containing countless pieces of personal information, to another person, elicits an examination of the concept of an individual’s privacy expectations. In today’s ever-advancing technological landscape, the perception of privacy is rapidly evolving—in particular, our willingness to comfortably provide certain people with access to our electronic devices.

One controversial subject is whether an individual has a reasonable expectation of privacy for text messages sent and stored in another’s cellular device. Joseph Vitale examines this question in an analysis of State v. Hinton[1] published in the Saint Louis University Law Journal.[2] In his Comment, Vitale examines the court’s majority and dissenting opinions in Hinton and concludes that, if the United States Supreme Court were to hear a similar case, the Court would find that individuals have a legitimate expectation of privacy when they send text messages to another’s phone.[3]

In his Comment, Vitale examines several models to reach his conclusion.[4] In the analysis of the “Katz Requirements,” Vitale primarily addresses the second prong of the test, which considers whether an individual’s expectation of privacy concerning his text messages sent to another person is “shared by society.”[5] Vitale argues in the affirmative, stating that because the average person is both unwilling to allow others to have access to his or her cell phone and maintains a belief that text messages will be for the recipient’s eyes only, communications via text message have a privacy expectation.[6]

While I do agree that society does have an expectation of privacy and that some people are hesitant to give others access to their phones, my personal experiences reflect a counter point and alternate reasoning. Every day I see people handling their phones haphazardly—leaving them on the table in the library while using the restroom, lending them to a colleague to make a phone call, letting a significant other browse through text messages, or, as in my case, handing them to a friend to view a picture. This, of course, does not mean that a person is not entitled to an expectation of privacy; rather, it brings about a unique query that if we, as a society, put the privacy of text communications on such a high pedestal, how can we be so willing to hand over our cell phones or walk away from them in a public place? Is it because we are handing our phones to a friend or colleague? Are we familiar with the public establishment? Or do we just trust that another’s morality will outweigh his curiosity?

Furthermore, it is difficult to fathom that a person who lends her phone to another or leaves it on a table, even if she only sees another do it, would be naïve enough to believe that a text message she sent to another could not potentially reach other eyes in some way.

Instead, I would argue that society’s expectation of privacy, in part, comes from a fear that the government could so easily have access to an individual’s information. It has been engrained in us since as early as elementary school that, as American citizens, we have a right to privacy. Knowing that we are guaranteed a certain level of privacy allows us to be somewhat haphazard with our cell phones and messages because we are in control. Giving up that control, chipping away from the block of privacy, can be terrifying.

Additionally, there is an interesting point to be made here regarding privacy in written letters as related to text messages. Vitale writes that the Fourth Amendment protects the content of the letter during delivery but the labeling information on the envelope is not private.[7] Once the letter has been received and opened, any expectation of privacy for the content is surrendered.[8] While Vitale states that some courts have analogized text messages and letters, referring to it as the Letter Analogy, he argues text messages are more like private phone conversations.[9]

The Letter Analogy brings up a whole host of stimulating questions that only highlight the difficult barriers courts are going to face as technology progresses. I agree with Vitale that text messages are similar to private phone conversations in that the sender and recipient are generally having a back-and-forth conversation that is not slowed by postal delivery. [10] However, similarities between letters and text messages arise when comparing the opening of a text message to the opening of a letter. This leads to the problem, though, that many phones have access code requirements, which a reader needs to bypass rather than just picking up a letter off of the coffee table.

Going one step further, assuming a letter and a text message are analogous, what is more entertaining and puzzling is the hypothetical situation where the recipient receives a text message that is visible on the lock screen of the phone but has not technically been opened until the recipient types in the code to unlock it. Would this be similar to the unopened letter since the phone has not been unlocked? Or would this constitute an opened letter because the text message is visible on the phone’s screen?

Vitale’s analysis of Hinton and the underlying notion of how technological expansions will have important legal impacts are thought provoking. His discussion of future considerations leaves open a great deal more questions than there are answers for at this time, and further highlights the imminent issues that will be presented to courts.[11]

The bottom line is that this is the age of technology. Statistics are sparse as to the number of text messages sent in 2013 and 2014; however, a 2013 Pew Center study showed that 56% of all adult Americans owned a smartphone.[12] This is a 21% jump from 2011.[13] It is fairly safe to assume, in light of such a significant increase and the rate at which companies churn out new products, that the number of smartphone owners increased in 2014, as did the number of text messages sent daily.

This wave of communication is the boulder that is not budging—it is systematically defining our generation. If and when, as Vitale concludes, the Court is presented with situations regarding electronic communication, it is a crucial opportunity for the Court to begin crafting new precedent in order to address problems rooted in technological developments.[14]

Emily D. Roman*

Edited by Andrew Bouquet

[1] State v. Hinton, 280 P.3d 476 (Wash. Ct. App. 2012), rev’d en banc on other grounds, No. 87663-1, 2014 WL 766680 (Wash. Feb. 27, 2014).

[2] Joseph C. Vitale, Text Me Maybe?: State v. Hinton and the Possibility of Fourth Amendment Protections over Sent Text Messages Stored in Another’s Cell Phone, 58 St. Louis U. L.J. 1109 (2014).

[3] Id. at 1144.

[4] Id. at 1136–42 (discussing the facts of the case in terms of the Katz requirements, the Third-Party Doctrine, and the Letter Analogy).

[5] Id. at 1137 (referring to Katz v. United States, 389 U.S. 347 (1967)).

[6] Id. 1137–38.

[7] Id. at 1120–21 (citing Ex Parte Jackson, 96 U.S. 727, 733, 735 (1878)).

[8] Id.

[9] Id. at 1124.

[10] Id. at 1141.

[11] Id. at 1142–44.

[12] Aaron Smith, Smartphone Ownership 2013—Update, Pew Research Ctr.’s Internet & Am. Life Project 2 (June 5, 2013), http://www.pewinternet.org/files/old-media//Files/Reports/2013/PIP_Smartphone_adoption_2013_PDF.pdf.

[13] Id.

[14] Id. at 1143–45.

* J.D. Candidate, 2016, St. Louis University School of Law.