State Court Confirms The Obvious: There's No Expectation Of Privacy In Text Messages Sent To Other People

from the yet-another-'going-dark'-option dept

A Massachusetts court recently sent out the useful reminder that a person's reasonable expectation of privacy does not extend to other people. In other words, there's an expectation of privacy in sent communications, but only up to the point that someone receives them. (via FourthAmendment.com)

In this case [PDF], the defendant in a drug conspiracy hoped to suppress evidence against him obtained from another person's phone. The lower court allowed Jorge Delgado-Rivera to join a motion to suppress filed by another defendant whose phone was searched by law enforcement following a traffic stop.

The higher court says this was the wrong thing to do.

We conclude that, in the circumstances at issue here, the judge erred in deciding that Delgado-Rivera could join in the motion to suppress to challenge the stop and subsequent search.

Delgado-Rivera should not have been allowed to join in the motion to suppress because he enjoyed no reasonable expectation of privacy, under either State or Federal law, in the text messages sent by him that were stored on a cellular telephone belonging to, and possessed by, another person.

This is a simple enough finding -- one that hasn't been contradicted by any case law here in the United States. (The Supreme Court of Canada, however, has decided the expectation of privacy of the sender carries over to the recipient of communications.) The only analogous case -- cited by the lower court in its ruling-- deals with the findings of the Washington state Supreme Court, which held in 2014 that a message's sender still retains an expectation of privacy. But the twist there is that it only covered messages sent -- but never received -- by the intended recipient. That finding deals with law enforcement's interception of these messages, with an officer posing as the intended recipient in hopes of collecting incriminating communications.

In this case, the messages were sent to the person whose phone was searched. And once they're sent and received, the recipient is free to share the communications with anyone, including law enforcement. That's what happened here, although the "sharing" question has been answered in another opinion, granting the message recipient his motion to suppress. That's detailed in a footnote which shows the supposedly consensual search of the phone most likely wasn't.

At an evidentiary hearing on his motion to suppress, Leonel Garcia-Castaneda argued that Officer Jose Tamez's search of his cellular telephones was non-consensual, at least in part because Garcia-Castaneda can speak and read only in Spanish, and the consent form he signed to authorize the searches was in English. The Commonwealth called Tamez to testify on this issue, but he invoked his right not to incriminate himself under the Fifth Amendment to the United States Constitution and therefore was not available to testify regarding the details of the stop and the subsequent searches. The Commonwealth presented no other evidence regarding the stop. The judge thus determined that the fruits of the search in Texas could not be used as evidence against Garcia-Castaneda.

This raises a question that is never answered in this opinion. If messages being used as evidence against Jorge Delgado-Rivera were obtained with an apparently illegal search of Garcia-Castaneda's phone, wouldn't this invalidate the evidence obtained against Rivera from Castaneda's phone? Apparently not. The court notes it in passing and makes no further mention of it in the rest of the ruling.

It does, however, suggest it would view the expectation of privacy in sent communications a little differently if the messages were encrypted or otherwise protected from being seen by anyone other than the intended recipient:

The Commonwealth notes the absence of evidence suggesting "that [Delgado-Rivera] took any steps to protect the contents of those messages [he sent to Garcia-Castaneda] by, for example, using encrypted messaging applications like Signal or Telegram, or an application that defaults to content deletion such as Snapchat." While the use of such applications, or similar efforts to enhance the privacy or security of the messages at issue, likely would be relevant to the extent that it reveals a defendant's efforts to protect his or her privacy, we leave for another day an issue that was not briefed by the parties and is not presently before us.

But the addition of encryption/self-destruction to messaging won't necessarily establish an expectation of privacy. Recipients can decrypt messages and share them or take screenshots of messages before they're destroyed. The senders of messages generally aren't expecting to share the contents of those communications with law enforcement, but there's very little preventing law enforcement from obtaining the contents from the receiving end of those communications.

Even with the seemingly illegal phone search in the mix, the court is right: there's no expectation of privacy. But there appears to be an unanswered question about the legality of the evidence being used against Delgado-Rivera. If was obtained via an illegal search, it should be suppressed, even if there's no expectation of privacy in messages he sent to someone else. But from what's said here, it appears Rivera will need to submit his own motion to suppress, rather than hitchike on his codefendant's suppression attempt.

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Filed Under: 3rd parties, expectation of privacy, privacy, recipients, text messages


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  • identicon
    Anonymous Coward, 10 Jun 2021 @ 11:02am

    If it's online, it's hackable.

    reply to this | link to this | view in chronology ]

  • icon
    Khym Chanur (profile), 10 Jun 2021 @ 11:06am

    If was obtained via an illegal search, it should be suppressed, even if there's no expectation of privacy in messages he sent to someone else.

    IANAL, but my understanding of U.S. law is if your rights are violated in obtaining some piece of evidence then that evidence can't be used against you, but it can be used against other people because their rights weren't violated.

    reply to this | link to this | view in chronology ]

    • icon
      Wyrm (profile), 10 Jun 2021 @ 6:23pm

      That's a follow up question mentioned by the article. Guess we'll have to see what happens next in this case.

      But this would be a terrible interpretation of the law. That would mean cops can break anyone's rights, for example by illegally seizing phones at random, collect information on people other than the owner, then do an "oopsie" and give the phones back to their owners, while keeping the collected data.

      That's not too far from they do in other cases (e.g. Stingray, collecting data from service providers), but a dangerous behavior to legitimize for sure.

      reply to this | link to this | view in chronology ]

      • identicon
        anon, 11 Jun 2021 @ 3:55am

        Re:

        There's a company in Arizona that manages SMS for the U.S. carriers. Every SMS message that leave one carrier's network (i.e. at&t) destined to another (i.e. t-mobile) goes through this company. This means that your SMS is able to be seized as business records of (in this example) at&t, t-mobile, and this 3rd company.

        Also, the only thing that a stingray provides that the existing cell networks can't is extremely precise location information. and that statement has to be qualified by 'unless your phone and the tower support e-911 which contains your GPS information. I'm not sure if it contains the gps info if you keep gps disabled for battery saving (as i do since i don't travel much) or if the phone turns gps back on when it detects a call made to 911.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 10 Jun 2021 @ 1:02pm

    Mostly sensible

    It makes sense that when you share a message with someone else you lose the ability to prohibit them from sharing it in turn but the idea that evidence illegally gathered can still be used is really not something that courts should be accepting or encouraging as it makes a complete mockery of the law since breaking it carries no penalty so long as you're doing it for 'offical' reasons and as a result such an argument if anything encourages breaking the law since illegal actions have nothing but positives.

    reply to this | link to this | view in chronology ]

  • identicon
    TheDumberHalf, 10 Jun 2021 @ 2:23pm

    Assumptions

    How do the they know you aren't texting yourself, on a phone you own and keep secure?

    reply to this | link to this | view in chronology ]

    • icon
      Wyrm (profile), 10 Jun 2021 @ 6:29pm

      Re: Assumptions

      Doesn't matter. Your phone, your messages, to yourself.
      Illegal seizure means they can't use it. Because it's all "you".

      (At least, it seems this concept still holds, despite the increasingly narrowing scope of "illegal seizure".)

      Now, change any of these to "someone else" and it seems they can use it. Against either yourself or the other person, depending on who owns the phone, I suppose.

      The problem here is not because "it's a message", it's because "it's someone else's message".

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Jun 2021 @ 10:35pm

    illegal search

    if evidence is tainted for one case. then it should be tainted for any other case as well. ownership shouldn't be a factor.

    reply to this | link to this | view in chronology ]


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