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Electronic Frontier Foundation Cellphones Communications Crime Your Rights Online

EFF Urges Court To Protect Privacy of Text Messages 93

Posted by Soulskill
from the why-can't-we-make-generalized-privacy-laws dept.
netbuzz writes "The police in Washington state arrested a suspected drug dealer, rummaged through the text messages on his phone, responded to one message while pretending to be the suspect, arranged a meeting, and then arrested the recipient of the text — all without a warrant. The state argues – and an appeals court majority agreed – that both suspects had neither a legal expectation of privacy nor Fourth Amendment protection because both considerations evaporate the moment that any text message arrives on any phone. The Electronic Frontier Foundation is urging the state's Supreme Court to overturn that decision and recognize that 'text messages are the 21st Century phone call.'"
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EFF Urges Court To Protect Privacy of Text Messages

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  • by Anonymous Coward

    If text messages are not covered by privacy laws, nor the fourth amendment, then surely the same could be applied to snail mail?
    When you write a text, you're sending it from one person directly to another over an electronic network, both parties realistically expect that the person who sent it will be the person who owns the phone (or an authorised user), and that the person who receives it will be the person who owns the phone (or an authorised user).

    Is it really any different to sending snail mail directl

    • by Joce640k (829181)

      .... fourth amendment ....

      The 4th amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

      The 4th amendment does not say: "The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated"

      Ref: https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution [wikipedia.org]

      (the section of that page titled "Searches incident to a lawful arrest" is particu

      • by Anonymous Coward

        This is unreasonable, and that is indisputable.

        • by Soluzar (1957050)
          If it were indisputable, this very topic would not exist...
          • by Anonymous Coward
            Not true. Lots of indisputable subjects are still considered disputable by some. For example, just to get the obligatory godwin out of the way, the Holocaust. It is indisputable that it happened, yet some people still choose to dispute it.
          • That's not correct. For example, it is an indisputable fact that Hitler was behind a genocidal movement known as the Holocaust. That doesn't mean that people won't attempt to dispute it anyway. By your misunderstood meaning of the word, there is no such thing as an indisputable fact:

            "I just punched you in the face"
            "No you didn't!"

            As you can see, misused the way you are misusing it, the word would be useless.

            +1 Instant Godwin ???
      • by yndrd1984 (730475) on Wednesday April 10, 2013 @07:02AM (#43410569)

        [Fourth_Amendment_to_the_United_States_Constitution - wikipedia.org] (the section of that page titled "Searches incident to a lawful arrest" is particularly relevant...)

        Did you actually read that part? The search and seizure in the case of an arrest is only reasonable for the immediate area and only to secure weapons and evidence. To quote your own article - "The justification for such a search is to prevent the arrested individual from destroying evidence or using a weapon against the arresting officer."

        Do you imagine that the signers of the 4th would have thought it "reasonable" that when a man is arrested the police can use his signet ring to send false messages to whomever they like without judicial oversight?

      • Wow your understanding of "unreasonable" needs work. Let's look at the history of the 4th Amendment. It is a federal crime to intercept UPS mail. The police have to have warrants to open your mail unless you are a prisoner serving time being one of the few exceptions. When the telephone was first invented, police could listen in on conversations until the courts ruled that this communication was considered private. Email was being intercepted until courts again ruled that they are private. Now it is t
        • by Joce640k (829181)

          It is a federal crime to intercept UPS mail. The police have to have warrants to open your mail unless you are a prisoner serving time being one of the few exceptions. When the telephone was first invented, police could listen in on conversations until the courts ruled that this communication was considered private. Email was being intercepted until courts again ruled that they are private.

          All of those things are done every single day as part of criminal investigations.

          • And prosecutors/police must get search warrants. Search warrants must be specific and they explicitly list mail as an item to be searched. When investigators wiretap someone's phone they have to have a warrant. And such wiretaps are not indefinite; they only last so long.
      • Great point there Rhodes scholar. Now, explain how warrants are an integral part of the process that directly determines if a search and seizure is reasonable. For extra credit, explain what Checks and Balances" means. Finally, offer justification for throwing out already solidly established rights and procedures simply because the means of transmission and/or storage differs.
      • by Anonymous Coward

        "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

        https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution#Text [wikipedia.org]

        If you're going to quote the 4th amendment (and actually quote it in quotations no less) Maybe you should quote the entire thing instead of one section and leave out the pertinent part about needing a warrant (which was not obtained in this case)

  • by gl4ss (559668) on Wednesday April 10, 2013 @02:27AM (#43409599) Homepage Journal

    identity theft.. inciting to crime.. unauthorized use of communications device(guess who got the bill for the sms's?)... you guys sure have a fucked police! (sms is either a phone call or more appropriately it's a letter).

    • by AK Marc (707885) on Wednesday April 10, 2013 @04:08AM (#43410013)
      Better than the drug raids on people who own cars or houses the police want. Raid and take it all. It's not as uncommon as it should be, there was one in CA where the guy had a gun he grabbed during the home invasion. The police ordered his "hands up" Another ordered him to "put the gun down" While moving his hand from above his head to the ground to comply with both orders, he was killed. No drugs were found. I think that was yet another the police claimed was a "mistake". http://www.druglibrary.org/think/~jnr/botched.htm [druglibrary.org] for another. Hundreds of examples out there.
      • by tehcyder (746570)

        there was one in CA where the guy had a gun he grabbed during the home invasion.

        "Home invasion" is emotive bullshit and an attempt to justify reaching for a weapon when confronted by the police, by stating the police action as a criminal one.

        I'm not American, and from my point of view if you wave a gun around near an armed cop you're asking to be shot.

        • Re: (Score:3, Insightful)

          by ganjadude (952775)
          if its the middle of the night, NO one should be in your home unless invited, someone breaks down your door, you have a right to defend yourself. How do you know its a real cop and not a thug breaking in pretending to be a cop? the problem isnt with gun owners, its with over reaching governments/ law enforcement.

          having said all that, maybe you need to do a little more thinking before you type.
        • by AK Marc (707885)
          What do you call a "no-knock raid"? It's a group of armed men who break down your door without identifying themselves, wearing full body armor with no visible identification, and wear masks (not for identity shielding, as usually claimed, but because they find it more intimidating). Give it a term that describes the act. We already have one here - we call them "home invasions". That's not emotive. That's the proper term for the act. "warranted police raid" is emotive language to paint the police as he
      • by chihowa (366380)

        Which is why these police raids need to happen less often instead of more and more often. There's no need to kick down somebody's door and shoot their dog (and possibly them or their neighbor if they got the wrong house) over the piddly crap that they're raiding people's houses for anyway. If you can flush the evidence in the time that it takes for the police to show you the warrant and push past you, then it likely wasn't that big of a crime anyway. And the vast majority of people are not going to start sh

    • by sirlark (1676276)
      Hmm, maybe the alleged drug dealer should get his lawyer to go after the cops for violations of terms of service, Aaron Swarts style. Life in prison sound fair according to prevailing prosecution opinion.
  • another good reason to have a password on your phone

    • The reason I started locking my phone was my little kids trying to play Angry Birds on my phone every time I put it down. I never locked my phone before now it's always locked.
    • by geekmux (1040042)

      another good reason to have a password on your phone

      TSA "master-keyed" unlock code mandate in 3...2...

      (It is highly ignorant to think that their rights are restricted to cheap luggage locks)

  • by Anonymous Coward

    The law is out of step with the general publics expectations of privacy.

  • by chrismcb (983081) on Wednesday April 10, 2013 @02:34AM (#43409635) Homepage
    What the government is arguing is A)

    no warrant was required because there should be no expectation of privacy in text messages, as anyone can pick up someone else's phone and read what's stored there.

    and B) the EFF claims

    "The state argues that just because someone can intercept a communication, you should reasonably expect that communication to be intercepted.

    Remember the 4th amendment says "and papers" it does not say "and private papers that no one else can see" There are lots of things that anyone can pickup and read... a letter in an envelope (which can be intercepted as well)
    There is a difference between glancing over someone's shoulder and seeing the text on the screen and physically taking the device, navigating to the text message section and scrolling through the messages.
    We have every right and expectation that those texts will be private. As long as they aren't on the screen as we wave the phone around in the air.
    Why does everything like this have to go to the Supreme Court?

    • by Anonymous Coward

      Why does everything like this have to go to the Supreme Court?

      Because the government loves violating our freedoms, and some judges can't wrap their heads around the concept of privacy?

    • What the government is arguing is A)

      Getting in the way of their warrantless, lawless, do whatever the fuck we want, police state. And so they're just going to keep trying, because let's face it: The law is more or less a lottery. And a single fuckup can establish case law and precident that'll last for centuries. Thanks, common law.

      • by Joce640k (829181)

        There's a big difference between scanning all messages passing through an exchange on fishing expeditions and looking in the phone of somebody who's already under arrest for criminal activity.

        When you're under arrest as a drug dealer the police can search you and your belongings. They can even look up your ass if they want to.

        • There's a big difference between scanning all messages passing through an exchange on fishing expeditions and looking in the phone of somebody who's already under arrest for criminal activity.

          When you're under arrest as a drug dealer the police can search you and your belongings. They can even look up your ass if they want to.

          When under arrest, the police certainly can search you and examine your belongings. However, the scope of their investigation is quite heavily restricted under law, and from a quick spin through the article (sorry /., I failed you... I read the original article, sorry for not following the traditions of this community) my non-legal opinion is that most of the actions that the police performed relating to the mobile phone were illegal, unless the first suspect voluntarily gives the police access to the phone

      • by hairyfeet (841228)

        The problem is the founding fathers never saw how infinite wealth would tilt the scales, cops can do anything they want now because the state has virtually unlimited wealth to break you. After all its not costing the prosecutor a dime to come up with 50 bullshit charges to throw at you to lessen your chances of winning a lawsuit and if it takes 10 years to worm its way through the courts how does it hurt them? It don't but since the average citizen can't afford to pay a decades worth of lawyer fees and the

        • by Kjella (173770)

          The problem is the founding fathers never saw how infinite wealth would tilt the scales, cops can do anything they want now because the state has virtually unlimited wealth to break you.

          What, you don't think the government had more resources than lone individuals in the 1780s? That nobody was hustled by bullshit charges by sherrifs? Let's face it, if the system hates you then you've had huge problems all through-out history and things like due process and legal representation and a jury of your peers was exactly so the government couldn't do it as easily as before.

          Are you sure the problems aren't your peers? Jammie Thomas did get a jury trial, they still decided to slam her with a $1.5 mil

          • by hairyfeet (841228)

            Actually? Nope, not really. You REALLY need to look at the history of this country as it is pretty fascinating, for the first century or so you could really represent yourself and not be in a major disadvantage and if a case went on for more than a week it was a rarity. Now cases taking a decade to worm its way through the courts isn't uncommon and if I were to drop just the laws of your county onto your head i could kill you, that isn't even counting state and federal.

            And I'm sorry but Ms Thomas got 12 peo

      • "do whatever the fuck we want, police state"
        If this is the case why is this action going through the court system? The US justice system is not perfect but this action is being examined by several different courts with an appeal process. And judges are not the only ones incapable of wrapping their heads around the concept of privacy. People today post their life history on the Internet and then complain their privacy is being violated. Most of the rabid privacy shills can not wrap their heads around the dif

    • Why should the police need a warrant to examine a suspect's phone messages if they have the right to search him? Would you expect them to get a warrant if he had unopened letters on his person? Please note I am NOT suggesting the cops can look at everyone's phones/text messages at will. But in situations where they have arrested a suspect and are searching him then text messages are fair game. Sending text messages posing as the suspect to presumably arrange a drug deal does seem like entrapment but that'
    • by Joce640k (829181)

      We have every right and expectation that those texts will be private

      This guy wasn't somebody picked at random on the street, he was under arrest as a suspected drug dealer.

      You know the cops can search your car/house/etc. if they have "reasonable suspicion", right?

      • by bradley13 (1118935) on Wednesday April 10, 2013 @06:23AM (#43410469) Homepage

        Um, no? If the cops arrest you, they do not have the right to ransack your house.

        They can search you and your car. As I understand it, the original idea was simply to ensure that you weren't armed and weren't carrying anything that they didn't want you to have while in jail. Creeping decisions by the courts have broadened this beyond recognition.

        Allowing them to search your phone is much more like your house: This has nothing to do with officer safety. They may not want you to have the phone while in jail, so they can confiscate it. However, looking around in your files and messages is like going to your home and rummaging through your personal papers. So far, that *does* require a warrant. Granted, it's an easy warrant to get if you've been arrested.

        Then they went the next step: using this guy's phone to set a trap for someone else. IANAL, but this sounds an awful lot like entrapment.

        The police want to nail the bad guys. They will use whatever means they can get away with, because their cause is just and their hearts are pure. Mostly, the courts go along with them, because they are all players on the same team. This is all great, until you consider what happens when an innocent citizen falls under suspicion.

        If the cops and prosecutors think you are guilty of some crime, they will use whatever means they have to nail you. Then they pile on the charges to intimidate you into accepting a plea bargain, so they can go on to the next case without the trouble of providing any due process. That pic of your kids in the bath? Child porn. That joking message to your friend? Conspiracy. Ridiculous, sure, but do you have the money to defend yourself?

        It must be our goal as citizens to keep the system under control.

        • by Joce640k (829181)

          Um, no? If the cops arrest you, they do not have the right to ransack your house.

          True, but they do have a right to search your person and your immediate surroundings for evidence that can be used against you, no warrant needed.

          Ref: https://en.wikipedia.org/wiki/Chimel_v._California [wikipedia.org]

          • by yndrd1984 (730475)

            True, but they do have a right to search your person and your immediate surroundings for evidence that can be used against you, no warrant needed.

            From your own link - "... There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well recognized exceptions, may be made only under the au

            • by Joce640k (829181)

              So....you're agreeing with me? I'm confused.

              • by yndrd1984 (730475)

                No, I'm not agreeing with you.

                It's true that while arresting you the police can search you and your immediate surroundings and confiscate most of what they find - but this is a limited ability based on the compelling needs of safety and evidence preservation. They can't use the house keys they confiscated to search your house, open your safety deposit box, etc. without a warrant, because those searches aren't justified by either of those two compelling needs. The bit I quoted before is another example of

    • Well it is a federal crime to intercept snail mail in transit. There was a reason for this. The problem is that laws have not kept up with technology. Some courts only will interpret the exact laws while some will expand the scope as they deem fit. Unfortunately the latter will be labeled as "judicial activism" by conservatives. Higher court rulings will set precedent.
    • by Fnord666 (889225)

      Why does everything like this have to go to the Supreme Court?

      Because that is where we set meaningful precedents that will have a significant impact on the interpretation of laws for years to come.

  • by VortexCortex (1117377) <VortexCortexNO@S ... t-retrograde.com> on Wednesday April 10, 2013 @02:36AM (#43409639) Homepage

    Clearly the police were in violation of the computer fraud and abuse act.

    Put 'em in jail.

  • by slackware 3.6 (2524328) on Wednesday April 10, 2013 @02:39AM (#43409651)
    So by Washington states logic I should be able to see the judges and police officers texts to.
    • Why not give it a try!?

      A simple FOI request to your local police department should suffice to get some idea of whether the principle is sound or not.

    • If you've arrested them under suspicion of a felony and are conducting a search of their person then yes. Otherwise no.
      • Re:Logic (Score:4, Informative)

        by c0lo (1497653) on Wednesday April 10, 2013 @04:40AM (#43410125)

        If you've arrested them under suspicion of a felony and are conducting a search of their person then yes. Otherwise no.

        Innocent until proven guilty?
        Is there any constitutional difference on the level of guilt of a policeman/judge and a suspect under investigation?
        The fact that one is a suspect, does it make the one automatically lose some or all their constitutional rights?

        You really want me to start "suspecting" you?

    • texts to whom?
  • by hedgemage (934558) on Wednesday April 10, 2013 @03:09AM (#43409791)
    All they had to do was get a warrant. If they had enough evidence to pick this guy up, I'm sure any judge would gladly sign off on a warrant to 'search' his phone and then follow the proper procedures for the ensuing sting operation. This is sloppy police work, nothing more, and now the public is being forced to pay the price for it by being forced to pay for court challenges because no one has the guts to admit they were sloppy.
    • Re: (Score:3, Insightful)

      by maroberts (15852)

      The question is whether getting a warrant takes some time, and that this may impede actions to prevent criminal activity.

      However, as someone else has said, the 4th Amendment states:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be sei

      • The question is whether getting a warrant takes some time, and that this may impede actions to prevent criminal activity.

        That's not a question, it's an argument. Framing it like a question puts the burdon on the person answering it to prove that the time it takes to get a warrant isn't going to interfere in preventing crime.

        In this case, they didn't even try to prevent criminal activity, they actively induced it by posing as the phone owner.

        The myth of the ticking time-bomb always comes up in these warrant

  • They're not sent encrypted or anything. Go read the GSM spec.

    • by mrbester (200927)

      Neither is a letter (SMS also has an envelope). Yet letters are protected.

    • by Pi1grim (1956208)

      Paper mail is not generally encrypted. Heck, when I'm talking to someone in my house I don't use assymetric crypto. It doesn't mean you are free to put bugs in my house. Intercepting SMS-es clearly requires intent and a number of manipulations. It's not like you can pick it up on a ham radio.

      • by MrKaos (858439)

        Paper mail is not generally encrypted. Heck, when I'm talking to someone in my house I don't use assymetric crypto. It doesn't mean you are free to put bugs in my house. Intercepting SMS-es clearly requires intent and a number of manipulations. It's not like you can pick it up on a ham radio.

        So true. I think, if the legal construct is the same as the one used in Australia anyway, this activity required an interception warrant - which was harder to get than a normal warrant.

        I'm wondering if the phone was locked, as this guys phone obviously wasn't, would the cops require a normal warrant to unlock and search the phone - just as they would require a warrant to search a car or house.

        Of course there is the tantalising possibility of requiring the officers fingerprint or face recognition photog

    • by citizenr (871508)

      Of course they are encrypted. Whole control channel is.

  • by splitsevin (953745) on Wednesday April 10, 2013 @04:57AM (#43410175)
    This is an Android, [google.com] iOS [apple.com] and web app [burnnote.com] that just came out a few weeks ago. I've been playing with it and it's perfect for sending messages you don't want to exist after the person reads them.

    Basically, it's a free messaging services where the messages self-destruct. They never get written do disk, just to volatile memory. If there's an outage messages will be lost, which sucks, but it does mean that they kind of mean business about privacy. The messages have a maximum shelf life of 30 days.

    Here's a writeup in Techcrunch. [techcrunch.com]

    I don't know if it's going to get that big but I realized the other day that even in my non-criminal, law-abiding life there are still a lot of things that I send to people via SMS that I probably should not have. Lots. Of. Things.

    They have a tech FAQ which goes into detail about encryption, privacy, etc. [burnnote.com]

    • Re: (Score:2, Insightful)

      by SternisheFan (2529412)
      Nothing would stop someone from snapping a pic of the screen with the text displayed, and it would live on that way. Just saying.
      • Also, nothing would stop someone from reading it aloud into a recorder, or copying it down on paper. You seem to have missed the point. It is not designed so that the recipient cannot access it. The design is intended to keep unintended recipients from getting it via third party channels such as an ISP, etc. through strong arm techniques or other methods.
    • ...no cash, no credit, no job history.

      You're stuck in whatever city they decide to dump you in.

  • Canada now requires a wiretap warrant, which is harder to get than a regular one. See http://www.cbc.ca/news/technology/story/2013/03/27/technology-telus-text-messages-scc-decision.html [www.cbc.ca]

    In a separate decision, the Ontario appeal court ruled that one needs to put a password/passcode on your phone to demonstrate that you have and expect privacy in the data it contains. See http://www.cbc.ca/news/canada/ottawa/story/2013/02/21/ottawa-cell-phone-users-beware.html [www.cbc.ca]

    --dave

  • I am upset about government sophistry that the Constitution does not apply.

    This has been going on for 70 years in the realm of economics. Many support those abridgements, though, and we run around like headless chickens, sqwaking in a quasi-sentient manner.

  • by ranpel (1255408)
    Fuck man. This shit is starting to drive me crazy. If you're not the sender and you're not the recipient you're not fucking privileged. My house. My phone. My mail. My text. Get a fucking warrant. Christ.
  • I had this happen to me once. A cop stopped me and asked me what I was doing as I was walking down the street shortly after moving to a new location. I told him I was just walking, at which point he searched me and confiscated my phone. He then proceeded to attempt to make drug deals with my phone! He then refused to return it to me, stating that he "needed it a little longer". He made me tell him my home address and informed me that he would drop it in my mail box when he was done! He finally did so,

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