Are Your Cell Phone Text Messages Safe from Government Eyes?

Written by: Darci G. Van Duzer
Researched by: Jay D. Hall
Edited by: J. Aaron Landau

Politics just wouldn’t be politics without scandals, and the scandal last week in Michigan was a doozy. Detroit Mayor Kwame Kilpatrick, after having testified in open court that he’d never been romantically involved with his chief of staff, found himself in hot water with the law (and, we assume, his wife) when it was revealed that some 14,000 text messages between the two told a very different story. As local prosecutors decide whether to seek perjury charges against the mayor (and as his chief of staff quietly resigns), this executive office romance has many asking some important questions: can the government really search your cell phone? When? Do they need a warrant? And wait, seriously — fourteen thousand texts?Is Your Cellphone Safe? Picture courtesy Ben Garney

It’s important to note that Mayor Kilpatrick was caught by virtue of having sent his texts using his government-issued PDA, subject to Michigan’s mandatory archiving laws. Your high-school texts are, reassuringly, probably lost to the ether. But what about the messages that are on your phone right now? They may be fair game: recent decisions of the U.S. Supreme Court and several federal circuit courts suggest that cell phone searches, when performed incident to a lawful arrest, can be reasonable and constitutional under the Fourth Amendment.

So, what’s a violation of the Fourth Amendment?

Here’s a quick background: the Fourth Amendment to the U.S. Constitution protects individuals against “unreasonable searches and seizures” by government agents and requires “probable cause” before a warrant is issued. In determining what the government can and cannot do, that individual protection has to be balanced with the government’s legitimate need to, for example, intrude on an individual’s privacy in the name of public safety. The Supreme Court illustrated that balance in Weeks v. US in 1914, where a unanimous federal court held that in criminal trials, the Fourth Amendment prohibits the use of evidence obtained through warrantless or unreasonable searches. It’s known as “the exclusionary rule,” and although it seems simple enough, courts have struggled ever since then to define what, exactly, makes such a search “reasonable.”

(Note: State laws vary widely, and many states provide more stringent protections than the Fourth Amendment. It’s worth keeping in mind that a great deal of search and seizure jurisprudence stems from state law, and is therefore more complex than the analysis provided here. But a general understanding of Fourth Amendment precedent is useful and illustrative of the directions federal and state courts may head.)

So, what’s a reasonable search?

Today, the answer to that question hinges on whether or not the search was a violation of an individual’s reasonable expectation of privacy. Determining whether the individual’s expectation of privacy was “reasonable” involves questions both subjective (did the individual actually expect privacy?) and objective (is society ready to recognize that expectation as a reasonable one?). For example, you have the reasonable expectation that your personal mail will remain private from the postman’s prying eyes, and society generally agrees that no one else should open your mail. Alternatively, it would be fairly unreasonable to expect that anything written on the outside of the envelope you mailed would remain equally private. (This is perhaps why the Mayor and his aide did not exchange their amorous messages via postcards.)

The situation gets a bit more complicated when we’re dealing with a search that occurs during a legitimate arrest. Because law enforcement officers have an interest both in ensuring their own safety (by searching for potential weapons) and in preserving evidence of a possible crime, a search completed “incident to a lawful arrest“ is exempted from the warrant requirement and is presumptively “reasonable,” thus sidestepping the objective/subjective test entirely. That leads to the key question: just what can an officer search?

Because an officer is presumed to know what’s appropriate in the circumstances, whether and how to conduct a search during an arrest is left largely to a police officer’s discretion. Of course, not everything an officer finds will be admissible in a criminal proceedingthere are limitations, but during an arrest the officer’s discretion is fairly wide, and generally gives an officer power to search your person or the area immediately within your control — regardless of whether you are being arrested for something as minor as dirty mud flaps or as major as multiple homicide. Several courts have held this search can extend to closed containers, glove compartments, packages of cigarettes,“ and yes, even cell phones.

So for example, imagine that our heroine Tania Texter gets pulled over for erratic driving. The officer notices that when Tania rolls down the window, the interior of her car reeks of marijuana. During the inevitable arrest, the officer notices a cell phone in Tania’s pocket and decide to scroll through the phone numbers. (He can do that.) The officer is suspicious that Tania has very recently been at a house of a known drug dealer who lives in the neighborhood where the stop was made, so they scroll through her text messages to look for communications. (Yup, he can do that too.) The officer then might have probable cause to believe Tania is involved in narcotics distribution, and search the entire vehicle for contraband.

Wait — can officials search a cell phone? Isn’t that personal?

Steamy messages can be read by officers during arrest. Photo courtesy Ben GarneyThe answer, like all great legal answers, is that it depends. Via the “search incident to an arrest” rule, police officers have long had the ability to search “closed containers,” any shut box, drawer, or the like. Cell phones, courts have reasoned, are similar enough to closed containers that allowing police to obtain information from them just isn’t much of a stretch. The Fifth Circuit recently held in U.S. v. Finley that while an individual may legitimately have a subjective expectation of privacy in his or her cell phone, the “search incident to an arrest” rule provides an officer the authority to search a phone just as he would a closed container on or near the person arrested. (For an interesting discussion of cases where cell phone information has been admitted — and the implications for iPhones — see The iPhone Meets the Fourth Amendment by South Texas College of the Law Professor Adam M. Gershowitz.) By comparing cell phones to closed containers, the court effectively broadened the existing “incident to a lawful arrest” exception to include cell phones, pagers, and PDAs — and potentially other personal technologies as well.

What’s the big deal? It has been considered appropriate in certain situations to subpoena information stored on pen registers and phone company records about the phone numbers that people dial. And there does seem to be good reason pagers and cell phones might need to be searched during an arrest: evidence in the form of cell phone numbers dialed can be very quickly erased. For example, a California federal court stated:

“Because of the finite nature of a pager’s electronic memory, incoming pages may destroy currently stored telephone numbers in a pager’s memory. The contents of some pagers also can be destroyed merely by turning off the power or touching a button. Thus, it is imperative that law enforcement officers have the authority to immediately search or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.” U.S. v. Chan, 830 F.Supp 531, 535-36 (N.D. Cal 1993).

So what about the text messages? George Washington University Law Professor Orin Kerr tackled this question, arguing that unlike the phone numbers dialed and recorded in Smith, and unlike the pager-signals used to track the defendant’s movement in Knotts, text messages represent content. This crucial distinction seems to tip the balance in favor of an individual’s legitimate expectation of privacy. That theory is buttressed by the Fifth Circuit’s opinion in U.S. v. Finley that one has a “reasonable expectation of privacy” in one’s cell phone text messages as well as numbers; on the other hand, due to the “search incident to arrest” doctrine, the Court still held the search to be lawful — and other federal circuits have yet to address the issue.

So why does the extension of this doctrine raise so many questions?

As it becomes easier to utilize technology, the balance between government interests and individual privacy becomes harder to navigate. The situation may be less dire or alarming than many stories suggest, but the fact remains: as our access to information grows in speed and scope, the avenues a government actor has to reach evidence grows right along with it. Nowhere is that more true than during an arrest: if Fourth Amendment jurisprudence follows the Court of Appeals of the Fifth Circuit in viewing phones and other digital devices as akin to Tupperware stash-boxes, an officer engaged in an otherwise lawful arrest could potentially browse a driver’s text messages without fear of violating constitutional protections. Although not everyone has 14,000 salacious texts to a chief of staff to worry about, it’s a thought-provoking idea nonetheless — and one that brings into clear relief the questions raised as personal digital technology and the Fourth Amendment continue to cross paths.

This entry was posted in Featured Articles. Bookmark the permalink.

33 Responses to Are Your Cell Phone Text Messages Safe from Government Eyes?

  1. Delegate says:

    Current and very informative. Thanks!

  2. Pingback: CommentURL.com | A world of interesting web pages

  3. Barry says:

    Is it that big of a suprise? Just about anybody with a little knowledge can secretly read your private information and conduct thier own little background check.

  4. steve says:

    You don’t even need to do a background check. If you want to freak yourself out, search for your own name at

    http://www.pipl.com

  5. LC says:

    Barry- To me, this is surprising because of a distinction that may be basic but isn’t always thought about when dealing with the Fourth Amendment. To come within the scope of 4A, the person doing the search has to be a government actor or a private party acting at the behest of the state. So while it may be surprising how much information is out there on the internet for curious eyes to see, it’s just a different feeling of invasion to think about the state being able to search your personal information during a traffic stop. It’s not a google search, it’s a search of your physical person and possessions. Also, I view the 4A as one of the most basic, valuable, and fundamental mechanisms to limit the power of the state. Without the 4A, information can not only be found, but used against me in criminal proceedings–much different than a private party simply conducting a background check.

    At least to me, information about my criminal record, etc. through a background check by a private party isn’t as much of an invasion as a police officer scrolling through my cell phone on the side of the road.

    That’s why the 5th Circuit ruling surprises me and I’ll be keeping an eye on 4A jurisprudence from here on out.

  6. steve says:

    Michigan Judge Robert Columbo from Wayne county (Detroit) has ruled that the text messages should be released to the public, and he’s given the city 3 days to appeal:

    http://www.clickondetroit.com/news/15220062/detail.html

    This should end well.

  7. steve says:

    Detroit Free Press has the text messages now. And… TPM says it best: “Denial ain’t just a river in Egypt.”

    http://tpmmuckraker.talkingpointsmemo.com/2008/05/the_last_time_we_checked.php

  8. Chuck says:

    Ive been pulled over by the cops who were looking for kids of my discription. they demand my cell phone without any other reason rather than me being a teenager and went through each and every text and contact taking names of those in the messages allthough none had anythin to do with what they were looking for. I this legal?

  9. steve says:

    All of Kwame’s text messages were published yesterday by the Detroit Free Press. Talkingpointsmemo has the details, here.

  10. Joe says:

    Hey Chuck, I would find out who those officers were and slam them with misconduct charges, of course get a lawyer. They had no reason whatsoever to engage in that conduct and furthermore, they had no reason whatsoever to pull you over in your vehicle. There are probably thousands of teenagers in your community, why you? Find out who did that to you and report this. What kind of world is this when police can just rummage through ones cellphone and pick and choose what information they will take? When police finally realize their true duties as police officers, this world will be a better place. Until then, they will be the egocentric, “i know everyone in town,” type people. But when they actually have to do work, it doesn’t get done. Unless it involves their night sticks and someones asshole, or target practice with human lives.

    Town police are the worst, I have respect for State Police as they actually deal with far more delicate tasks. Town police are the epitome of low-life, their job is based on quota strictly. Of course they have to do work but the majority of their work comes from routine traffic stops and bull shit.

    Today, while at my job, I see a police officer (town) drive by the front of the place. He then parks his car and starts to walk up to the people in the fire lane waiting for their loved ones to get into the car. I suppose he told them to move as they did shortly after. Really though, is this what we pay for? Believe me, if the building is about to burn down, the cars will move before the fire truck gets there.

  11. Cole says:

    After arrest for first time MIP, at the jail (Yes, jail!!) the arresting officer opened my mobile, then opened and read two text messages aloud. Then asked me who a third one was. No Miranda at any time. I was a rear seat passenger and alcohol was allegedly found under a front seat. The person sitting in that seat was not charged and her parents not even called. It was a friend’s car and we (at least I) did not know it was there.

  12. Darci says:

    I was pulled over today because a cop thought i was texting while driving. He DEMANDED to see my cellphone and told me that if I did not give him my cellphone he would impound my car. What was I to do? He then told me after that I was speeding in a school zone and changed lanes in a school zone which I never did either. He wrote the ticket for 17 over in a school zone and improper lane change. What do I do? I did neither of these?

  13. Emily says:

    Hi I’m 15 and my dad loves invading my privacy and he has a cop friend that he has asked a couple times to view and print my text messages. He acctually did and he showed me the proof. Which i got grounded for many times. I was wondering if that is illegal because he has no legal reason to do that, or a court order, or my permission. Please let me know because I want this to stop now. Thank you.

  14. Nia says:

    I am a rape victim. The police asked to see one txt from my bf who raped me but them proceeded to look at other txts dating back weeks (I have an iPhone so it’s easy). I also have a pass code which in my opinion deems things “private.” So, is this legal? He didn’t ask he just did so and didn’t inform me of it either.

  15. joey says:

    Emily no the cop can’t give that to your dad for any reason. that law tell your teacher or some one and he will be in hot water if you have proof

  16. Unique Information.Educational.Keep up the good work.

  17. Andrew says:

    What about if your phone has a lock or pin on it, you can’t be forced to give up a password. Does this mean they will take it to the station and crack it?

    Also, what about a text message sent from husband to wife. Is it not considered spousal privelage?

    From legalmatch.com:
    “In any marriage, private information is often exchanged between spouses. If either you or your spouse is a defendant in a court trial, the husband-wife privilege prevents the confidential communications from being used as evidence against you or your spouse.”

    Does “communications” cover text messages?

    Also, to everyone worried, simply set an aut0-delete time for your text-messages, or just manually delete the incriminating ones.

  18. Justice says:

    Ive been a victim a crime my ex gf assaulted me in 2 different places 1 in the park and the other 1 in out apartment. This is July 4th of this year. I called a cops to report my ex gf/fiance for assaulting me and “IM A GUY!!”. The cops came to the hospital because i received a busted lips and my throat was on paid because. She first strike me in the throat in the park. Then shes not happy she did it again inside my dads car. After i reported her. She and her liar friend show a text to the cop that I Bit my lips put her in trouble… This is a redicoulous cops told me he will arrest her that night in our apartment. But he didnt after i came out from the ER i passby our apartment and saw a neighbor and ask neighbor said cop didnt come. Bottom line the cop lied to me… Because i told him im not pressing charges… But he insist to me he will arrest her… Well cops gave them a chance to lie show the fake text to the cop I bit my lips and cops arrested me and charging me a false report. Em i allowed to sue the cops and file a complaint i have solid evidence ive been assaulted and now the TEXT CAN BE FAKE!!! My ex gf download an APPS in her smartphone for fake textes that you can put any name or number and put the words you want… I left my fiance because of her lies after assaulted me, Used me and lied to cops… I have a lawyer… And cops should arrested her because i found out she had 1992 warrant still active in the courthouse in S.B. .. PLease i need an advice i need justice is it a cops responsible? This cops believe those text messages are fake.. I have a forensic who will prove that those text messages not comes form my own cell phones… Any advice if i can sue the cops for false arresting me and my ex gf…. Im innocent god knows im a vicitm of an assault…I just notice girls are more believable than guys… NOT ALL GIRLS ARE HONEST AND NOT ALL GUYS ARE LIARS…. I FOUND OUT MY EX IS AN EX CONVICTED FROM NEW MEXICO… The D.A. needs to dismiss my case as a misdemeanor… Or i will file a lawsuit to the cops who false arrested me…

  19. Justice says:

    https://play.google.com/store/search?q=fake+text+message&c=apps

    WARNING: THIS WEBSITE SHOULD BE CLOSED OR SUED BECAUSE IM A VICTIM OF THIS FAKE TEXT MESSAGES!!!! IM NOT THE ONLY VICTIM OF THIS FAKE TEXT MESSAGES AND COPS AND LAW ENFORCEMENT SHOULD BE AWARE OF THIS KIND OF FRAUD TEXT!!!

  20. Rati Murty says:

    awesome blog I’m glad I stumbled onto it through my friend’s blog, gonna
    need to put this one on the list :D

  21. Mike McKoy says:

    So how does one keep police from searching a phone? Mine is always locked.

  22. Sebas Donoso says:

    If you were to be arrested, I don’t see why police can’t go through your phone. If they caught you doing an illegal crime, going through your phone would most likely pull up some form of evidence. This would only be acceptable if you’re caught in the act and could pose as a potiental threat. Other then that, it would be unfair to anyone to just get their phone seized and looked at by an authority.

  23. I do not know if it’s just me or if perhaps
    everyone else encountering issues with your site. It appears as though some of the text
    within your content are running off the screen.
    Can somebody else please provide feedback and let me know if this is happening to them as well?

    This might be a problem with my internet browser because I’ve had this happen previously.
    Cheers

  24. It’s nearly impossible to find well-informed people in this particular topic, however,
    you seem like you know what you’re talking about! Thanks

  25. Courtney Augustin says:

    I think the police should be able to go through your phone but for only serious reason other that no because they don’t need anything from your phone that can help them. Other then that if you don’t want them to go through your phone don’t do anything stupid to put yourself in that position for them to go through it.

  26. Becca Zdanoff says:

    Personally, I feel that the government does not have a right to go through my cellphone and my text messages. Compare it to my mail, text messages are technically electronic mail that gets passed back and forth between two cellular devices. It is my private conversations, and I have an expectation of privacy. However, there are exceptions to the rule, especially during the current war on terrorism our country is in. But I can honestly say that if the government had asked to read my text messages, I would politely reject and say that they have no reasonable suspicion to look through my phone. My phone, my privacy. Unless I was murdered and they are looking through my phone to help track down my murderer, they have no right to go through it and search my phone. I have a right to text whomever I feel like texting, and without my consent, it is for my eyes only to see.

  27. Julia Buerle says:

    I believe that the police should be allowed to search your messages but not whenever they wish. I believe that they should need a warrant to do so. Just like in your home, or in a phonebooth or in the mail you expect privacy the same applies here. I would not expect to have the police or government or anyone but myself and the person on the other end of the phone to be reading my messages. So without reasonable suspicion and a warrant the police or government should not be able to read through the things on my cell phone. I also believe that if you were arrested your phone should definitely be allowed to be looked through. So in essence I believe that the only two circumstances in which your text messages should be viewed is with a warrant or when you are arrested and your phone is seized.

  28. Shalene Myers says:

    I think the police should only be able to go through your phone if they have a reasonable suspicion that you’re doing something that can potentially harm yourself or the lives of others. I don’t think it was necessary to check Detroit Mayor Kwame Kilpatrick’s phone. I feel like that was his business, he wasn’t hurting anyone but himself and his marriage. even though he lied, testifying in open court that he’d never been romantically involved with his chief of staff I feel like that should have been confidential.

  29. Franzi says:

    I think it’s crazy to think that your cell phone can be searched. I had always thought it was a private thing. But, if the government or an official has a reasonable suspicion when arresting you for a crime, it seems as though, it is just as normal to search your cell phone as it is to check a drug dealers’ car. I think the government should be able to check your cell phones because if there was anything dangerous to society on there, I’d rahter they knew so they could prevent it. I understand that it is not legal in all cases, but in any case where you are being seized, your belongings are too, and therefore your phone is included. They have as much of a right to go through your contacts and text messages as your person.
    -Franzi

  30. Eddie Iodice says:

    Police should only be allowed to search your phone with a warrant. There are apps out there that let you keep passwords and credit card info and we expect that to stay private, everything on the phone should be private unless a warrant is issued.

  31. Ashley Vega says:

    I believe that the police and or government do not have the right to go through our text messages. This article talks about a man who is involved romantically with his chief, and although that is wrong that is their business and they should be the ones dealing with this and not the police. The police should not be reading their messages. I believe that when we text we have a certain amount of privacy that we expect. It is our business and there is no reason for the government or the police to be randomly reading our messages. Especially with certain people we would not even want our friends to read our messages, it is just private. We as American deserve to have this privacy. However, unless their is a reasonable suspicision as to why the government needs to read the message, like it could help them solve a criminal case then they should be able to search the messages. Until that though, we have the right to privacy in the comfort of our own text messages. And if not then that is in violation to the 4th amendment. -Ashley Vega

  32. Ruth says:

    The fourth amendment clearly states that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. First of all, unless a judge sanctions a warrant to search through my phone i would probably refuse to hand over my phone to the police. They might have a probable cause but it’s still in their best interest not to do that without our permission. They can do it but it depends. In certain cases, while the police are trying to hunt down a certain criminal searching through phone records and text messages may be helpful. But without a warrant, i don’t want the police to search through my phone. Even if they had a probable cause, id say it was unjust.
    Ruth

Leave a Reply

Your email address will not be published. Required fields are marked *

*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>