AN ANALOGICAL-REASONING APPROACH FOR DETERMINING EXPECTATIONS OF PRIVACY IN TEXT MESSAGE CONTENT.

• Author: Winkler, Andrew T.

1. INTRODUCTION

   The Supreme Court's decision two years ago in United States v. Carpenter^ left no room for doubt regarding what the government must do if it wants seven days of historical cell-site location information from a service provider--get a warrant. (2) But what about other types of information to which a service provider has access and maintains? For instance, some service providers, including Verizon Wireless, retain the contents of text message communications for a limited amount of time.' Would the government also be required under the Fourth Amendment to obtain a warrant before it could acquire text messages (4) from a service provider?

   Imagine the government is investigating an individual suspected of distributing child pornography by electronic means. During the course of its investigation, the government discovers that the suspect is regularly using a particular cellular telephone. Suppose further that the government serves a grand jury subpoena duces tecum on the suspect's service provider requesting, among other things, a log detailing the time, date, and phone number for each text message sent from or received by the suspect's phone during a specified period of time. Unexpectedly, as part of its response to the subpoena, the service provider not only discloses the text message details, it also includes the contents of those text messages. Moreover, many of the text messages appear to be incriminating in nature and suggest that the suspect is indeed distributing child pornography.

   The obvious question then arises: can this relevant and material evidence be used either as part of other investigatory techniques for the ongoing criminal investigation or directly against the suspect later at trial? Put differently, would the government violate a defendant's rights under the Fourth Amendment if it used the contents of text messages it obtained from the suspect's service provider without a warrant?' Because the Fourth Amendment protects against unreasonable searches, we'd first have to determine whether the government's conduct amounted to a "search" in the first place. Of course, whether a search occurred based on these facts ultimately depends on the following: does a defendant have a legitimate expectation of privacy in the content of his or her text messages retained by a service provider once that message is delivered to the intended recipient? (6) While the answer to these questions is not entirely clear based on existing case law, there is a plausible argument to be made that the government did not violate the suspect's constitutional rights in this circumstance.

   This Article is divided into three parts. Part II begins by briefly addressing the two-part expectation-of-privacy test first articulated in Katz v. United States. (7) which is frequently used to determine whether the government conducted a Fourth Amendment "search" when there is no physical intrusion on a constitutionally protected area. This section then examines the third-party doctrine, which provides that a defendant generally loses any legitimate expectation of privacy when he or she voluntarily discloses information to a third party. This loss occurs because the defendant assumes the risk that the third party could convey that information to the government or otherwise make it public. Assuming the government has engaged in conduct that constitutes a search, however, this section also considers the related private-search doctrine, which generally provides that the results of a government search that do not exceed the scope of a prior private search should not be suppressed even though the private search may have invaded the individual's privacy rights.

   With these constitutional foundations established, Part III focuses on several federal cases that have touched upon, either directly or indirectly, the issues implicated in this Article. Although the universe of cases itself is rather small, the courts' analyses (or lack thereof) in these cases shed light on whether a defendant may or may not have a reasonable expectation of privacy in the contents of text messages retained by a service provider.

   Finally, Part IV recognizes that understanding what was historically deemed an unreasonable search when the Fourth Amendment was adopted is instructive when addressing whether an expectation of privacy is legitimate. Accordingly, I suggest that an analogical-reasoning approach is best suited to address the specific Fourth Amendment issues at stake when the government obtains text messages from a service provider. In doing so, text messages are easily distinguishable from other types of digital information, like historical cell-site location information at issue in Carpenter, which may not be truly "shared" with a third party. Based on their fundamental nature, text messages are different in relevant respects because they are intentionally directed to a third party with whom the defendant is voluntarily sharing information and knowingly delivered with the assistance of the service provider.

   For this reason, text messages should be treated the same as other substantially similar forms of communication, including letters, telegrams, emails, and pager messages, for purposes of the Fourth Amendment. And because there is no legitimate expectation of privacy in the contents of a letter or email once is delivered to its intended recipient, the sender of a text message similarly loses his or her expectation of privacy in the content of the message when it is received by its intended recipient. Moreover, case law demonstrates that it is constitutionally irrelevant that the government obtains identical text message content from the service provider rather than from the third-party recipient, as the expectation of privacy was lost upon a message's delivery.

   Insofar as the government's acquisition of text message content from a service provider constitutes an invasion of a defendant's privacy, Part III then considers whether doing so would exceed the scope of the initial invasion by the service provider, which already obtained and archived copies of those text messages before the government requested the same information from the service provider via a subpoena.

2. FOURTH AMENDMENT SEARCHES AND RELATED CONSTITUTIONAL DOCTRINES

   This portion of the Article is divided into three sections. The first section provides a brief overview of the legal analysis used to determine whether a search has occurred under the Fourth Amendment when there is no physical intrusion on a constitutionally protected area. The second section introduces the reader to the thirdparty doctrine and some of the leading cases to illustrate the doctrine's applicability. The third section addresses the somewhat related private-search doctrine, which might be applicable in the context of a service provider collecting, maintaining, reviewing, and producing the contents of text messages.

   1. The Katz Expectation-of-Privacy Test

      The Fourth Amendment to the U.S. Constitution guarantees individuals the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches...." When a purported search does not involve physical property interests, a defendant may still contend that his or her Fourth Amendment rights have been violated by demonstrating that the government intruded upon a legitimate expectation of privacy. (9) To do so, the defendant must prove that his or her conduct exhibited a subjective expectation of privacy in the place searched (i.e., he or she seeks to preserve something as private), and that this expectation is one society is prepared to recognize as reasonable (i.e., the individual's expectation, when viewed objectively, is justifiable under the circumstances). (10)

      For purposes of this Article, the analysis will focus primarily on the second prong of the Katz test. That being said, if the government is responding to a motion to suppress, it is important to examine the specific facts of the case and assess whether the defendant has sufficiently set forth particular conduct supporting a subjective expectation of privacy. Practically speaking, a defendant's failure to articulate such facts would allow a court to deny a motion to suppress for this reason alone without having to address the much more contentious issue of whether the subjective expectation of privacy is reasonable.

   2. The Third-Party Doctrine

      The Supreme Court has long recognized that when one person voluntarily discloses information to a third party, the first person generally loses any legitimate expectation of privacy under the Fourth Amendment because he or she assumes the risk that the third party could make that information public or convey it to the government."

      The "third party" in this context is generally understood to be the intended recipient of the information, and not, for example, a commercial carrier. (12) Knowingly sharing information with another person, however, "does not mean that the Fourth Amendment falls out of the picture entirely." (13) Rather, a court must still consider "the nature of the particular documents sought to determine whether there is a legitimate expectation of privacy concerning their contents."

      The Supreme Court has frequently applied the third-party doctrine (or relied on the doctrine's underlying reasoning) in circumstances that are relevant for answering the questions presented in this Article. The following cases are not meant to provide an exhaustive account of the doctrine's applicability, but they are undeniably helpful in understanding the scope and applicability of the doctrine.

      In the seminal post-Katz case of United States v. Miller, (15) the government subpoenaed two of the defendant's banks to produce "all records of accounts" as part of its investigation of the defendant for tax evasion. (16) In response to the subpoenas, the banks showed a government agent microfilm records of the relevant accounts and provided...