The Washington state Supreme Court ruled February 27 in two parallel decisions that text messages are private and that law enforcement agencies must get a search warrant to read them.

The case arose when a Washington man, Daniel Lee, was arrested for possession of heroin, according to the Seattle Times. After his arrest, Lee’s phone was confiscated and detectives read his messages without his permission. Among the messages were two from Shawn Hinton and Jonathan Roden. Detectives returned the messages, posing as Lee, and set up meetings to sell them drugs. Hinton and Roden were subsequently arrested and charged with attempted possession of heroin. Both were convicted.

Supreme Court Justice Steven Gonzalez wrote, however, that text messages “can encompass the same intimate subjects as phone calls, sealed letters, and other traditional forms of communication that have historically been protected under Washington law.”

If Lee had voluntarily allowed police to read the messages, Gonzalez wrote, the outcome would have been different. “Hinton certainly assumed the risk Lee would betray him to the police, but Lee did not consent to the officer’s conduct. ...But that risk should not be automatically transposed into an assumed risk of intrusion by the government.”

“Just because a letter is sitting in your mailbox doesn’t mean the cops get to open it,” Electronic Frontier Foundation attorney Hanni Fakhoury told the Times. “The Washington court said there shouldn’t be a difference” between privacy protections on mail, phone calls and text messages.

It’s the latest in a series of rulings that have extended privacy expectation to mobile phones and their contents.  A Texas appeals court ruled on February 26 that a mobile phone owner has the expectation of the phone’s privacy even if the owner is incarcerated and the phone is in a jail property room.  “A cell phone is unlike other containers as it can receive, store and transmit an almost unlimited amount of private information,” that court held. “The potential for invasion of privacy, identity theft or, at a minimum, public embarrassment, is enormous.”

The U.S. Supreme Court is scheduled to hear arguments in April about whether police are allowed under the U.S. Constitution to search a suspect’s cellphone without a warrant while making an arrest or soon thereafter.

-Steve Straehley

To Learn More:

State High Court Upholds Privacy Rights on Text Messages, Tosses Out 2 Drug Convictions (by Sara Jean Green, Seattle Times)

Justices: People have Right to Privacy in Texts (by Gene Johnson, Associated Press)