Protecting the Text: Court Settles National Debate on Privacy in Washington State

PhoneBy Rachael Wallace

On February 27th, the Washington State Supreme Court reversed two cases in which criminal defendants had their text messages read and later used against them in trial. The Washington State Supreme Court is one of many courts weighing in on this national debate: whether text messages are “private” and protected from warrantless searches under state and federal constitutions.

Courts at the state and federal level have struggled with the intersection of technology and privacy, so much so that the U.S. Supreme Court is scheduled to hear arguments next month on the issue. In Washington, the Supreme Court did not reach the question of whether the warrantless searches of cell phone text messages violated the U.S. Constitution; instead, the Court determined that these warrantless searches violated the state constitution and the Washington privacy act.

The two cases involve the same cell phone and similar facts. Daniel Lee, not a party to the cases, was arrested for possession of heroin. The police seized Lee’s cell phone, searched the text messages, and responded to several people. Through these communications, the police set up meetings that resulted in the arrests of Jonathan Roden and Shawn Hinton.

Roden appealed his conviction, claiming that the warrantless search violated Washington’s privacy act, the Washington State Constitution, and the U.S. Constitution. The Court did not reach the latter two arguments, however, because it concluded that the search did in fact violate Washington’s privacy act. The privacy act “prohibits anyone not operating under a court order from intercepting or recording certain communications without the consent of all parties.” The Court narrowed the issue under the privacy act to two parts: “whether the text messages were ‘private communications’ and if so, whether they were ‘intercepted’ within the meaning of the statute.” The Court answered in the affirmative on both issues, and reversed the convictions.

Justice González wrote both the Roden and the Hinton opinions. Though the analysis was similar in the cases, the petitions each relied on a different basis for appeal. Roden’s petition was grounded in state privacy law, whereas Hinton’s petition relied on state constitutional law.

Hinton’s petition for review asked the Washington State Supreme Court to decide “whether the detective’s conduct violated the state or federal constitutions.” The Court stopped its analysis after determining the warrantless search violated the state constitution, since the state constitution provides greater privacy rights than the U.S. Constitution.

According Hanni Fakhoury, a staff attorney for the San Francisco-based Electronic Frontier Foundation, the Washington State Supreme Court’s ruling follows a national trend that is “going towards protecting the phone and bringing privacy protections to the contents of the phone.” The U.S. Supreme Court sometimes takes into account national trends, but what it will decide in April remains to be seen.

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