Privacy in Cell Phone Communication: Issue still open

The is article is written by Arkady Bukh, a criminal defense lawyer in New York.

In U.S.A. this issue is still open at least on the Federal level.  However, many of the states have needed to make decisions on what Fourth amendment protections apply to cell phone text messages.  The questions being asked include whether the police can just pick up a cell phone and look at it contents without a warrant; can they even pick up the cell phone without a warrant, are the text messages to and from that particular phone protected private material of the cell phone owner, or even

are they protected private material of the person who sent the message. 

The California Supreme Court held in their 2011 decision in People v. Diaz that the search of text messages on a cell phone which had been on the defendant at the time of his arrest was a valid warrantless search.  The majority opinion argued that this search was viable because it was "a search incident to lawful arrest" and cited a US Supreme Court case United States v. Robinson.  The Court stated that such a search of the person of an arrestee was correct as the defendant may well have weapons and other items of danger to law enforcement on their person.  Therefore, it was correct for the police to seize the cellphone.  The defense and the dissent however argue that it was illegal to open the cell phone and look at its contents as there was not likely a weapon there.  The defense argues that a cell phone holds extreme amount of information and should not be searched without a warrant.  It also appears that the police had time to get a warrant as they didn't search the phone until after the arrest.

Cell phone Messaging Meme

A case that holds a different view is one that has been widely reported and comes out of the Superior Court of the State of Rhode Island, State of Rhode Island v. Michael Patino.  In a decision handed down on September 7, 2012, Superior Court Judge Judith Savage held that any evidence gained by the police by reading messages on a particular LG cell phone was tainted and was thrown out.  She also had some severe complaints about procedures by the local police department that damaged other evidence.  This being a murder case, the decision was quite controversial and the Judge wrote a carefully thought out 190 page decision.  Part of her argument seems to follow the thinking of the dissent in Diaz in that a cell phone holds an almost infinite amount of information and before that information is searched a warrant should be obtained.  Part of this opinion relies on US v. Katz in which the Supreme Court held that the Fourth Amendment protects the person not the method of communication and thus, he didn't lose his right to privacy because his messages were sent to a place they might be seen.  The opinion goes on to state the US Supreme implied a similar message in their decision in Ontario v. Quon that although in the case the messages could be read because it was on the employer's pager and sent by an employee, but did not say that a person had no right to privacy in his own text messages on his own device.  The Patino case of course will now go to the RI Supreme Court on Appeal.

These two differing opinions become even more important now because it is an example of how divided the state courts are on this issue and how they need more guidance from the Federal government either in legislation or by a Supreme court decision.  This week a Senate committee has been considering some tweaking of the Electronic Communications Privacy Act, in which government has monitored digital communications including cell phone information.  Will the recent court decisions have any effect on the Senate committee? Well they should surely look at them.  This is an area that is becoming more and more important as people eschew pencil and paper and text to each other on even a minute to minute basis.  What is protected by the Fourth Amendment and what is not?  At the moment only the local courts can make their individual and varying decisions. 

The is article is written by Arkady Bukh, a criminal defense lawyer in New York.

Arkady Bukh is a criminal defense lawyer in New York, founder of Bukh Law Firm P.C. (14 Wall Street, New York NY 10005, (212) 729-1632). The office is a boutique criminal firm handling high-profile white collar, Federal, and International extradition cases.

Keywords: cell phone privacy in USA, Arkady Bukh, criminal defense lawyer in New York, Bukh Law firm, People v. Diaz, United States Robinson, State of Rhode Island Michael Patino, Katz, Ontario Quon,