Text messages and the Fourth Amendment

Marijuana_Text_MessageYour communications, including text messages, are private and may only be intercepted with a warrant … right???

Not so fast.   Even outside the constitutionally questionable practice of ‘warrantless wiretapping’ that occurs under the auspices of the War on Terror, there is a much more mundane threat to your privacy where text messages are concerned.

In 2011, in the case of People v. Diaz, the California Supreme Court held that defendants lose their privacy rights for any items they are carrying when taken into custody.

That means anytime you are taken into custody, your phone (which has become an almost universal personal accessory at this point) may be searched without your permission if it is not secured.  And you can be sure that your stored text messages will be the first thing they review.

And before you ask, the US Supreme Court will not be stepping in to save the day. They refused to hear the case, letting this dangerous precedent stand.  Since then, the 7th Circuit Court of Appeals has made a similar ruling in United States v. Flores-Lopez.

But the risks inherent in text messaging do not end there.  Unlike the content of voice conversations, your entire text messaging history is probably stored by your telecommunication provider and may be requested by any law enforcement agency with a valid warrant.

So what does this mean to you?  The answer is simple.  It means that you should not consider text messages to be a private means of communication, at least not until the justice system catches up with technology and properly recognizes that the ‘papers’ referenced in the Fourth Amendment can just as easily be comprised of electrons.

© 2013, John Pierce. All rights reserved.


About John Pierce

Monachus Lex is written by Virginia attorney John Pierce. John is a life-long gun rights advocate, an NRA certified instructor and co-founder of the nationwide gun rights group OpenCarry.org.

He has an undergraduate degree in Computer Information Systems, an MBA from George Mason University and is a 2012 Honors Graduate of Hamline University School of Law in St. Paul, MN.

Professionally, John is a member of the American Bar Association Second Amendment Civil Rights Litigation Subcommittee and his writings have been published by the ABA Civil Rights Litigation Committee and the ABA Minority Trial Lawyer Committee.

In addition, his open carry advocacy has been featured on Nightline and The Daily Show With Jon Stewart.
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