"Texting" by Alton - Own work. Licensed under Creative Commons Attribution 3.0 via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Texting.jpg#mediaviewer/File:Texting.jpg
by David Cmelik
Although content stored on cell phones is a pending matter before the United States Supreme Court [Update: the two cases before the United States Supreme Court have been decided in the Defendants' favor although exceptions apply-- see cell phone blog elsewhere on this site] the messages speeding through telecommunications networks and sent to third-parties is nearly out of a criminal defendant’s control when he or she pushes the send button. Why?
Well, for starters, a copy of the original message is now in its intended recipient's cell phone. And it got there somehow, namely, by traveling across the network (an acquaintance of mine once attached a signature to all of his emails that announced that his emails were manufactured using 100% recycled electrons-- think of text messages like that). And it is invariably stored—at least for a short time—on carrier network servers. Law enforcement officers sometimes issue subpoenas for the server content. I’ve always believed that a warrant is required to obtain this information. But the counter-point, posed by LEO and prosecutors, is that a defendant no longer has a legitimate expectation of privacy in content stored on someone else’s phone or, in the alternative, on the server. A legitimate expectation of privacy is subject, of course, to changing societal perceptions about privacy and that was te message the United States Supreme Court seemed to be intimating an earlier case when it indicated that the Fourth Amendment is not static. “Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. Quon v. City of Ontario, available at http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf But what is legitimate is subject to debate. What isn't up for debate are the amazingly candid things people say to one another in text messages. Some of those things involve criminal offenses. In a well publicized case in another state, a woman who allegedly murdered her husband on a perilous hiking trail had purportedly texted a friend earlier in the day that “[b]ut dead serious if u don’t hear from me at all again tonight, something happened." Even if someone has a legitimate expectation of privacy in that text messages, a warrant will quickly moot that question. It is also mooted when the third party hands it over to police. At the root of this evolving technological law is not the technology itself but the things that are being communicated: admissions by a party opponent, or, defendant. Admissions are nothing new to the criminal law. Iowa Rule of Evidence 5.801 excludes from hearsay an admission by a defendant—which means that a party’s admission can be offered and admitted even if the Defendant does not testify. State v. Bayles, 551 N.W.2d 600, 606 (Iowa 1996)(“ Iowa Rule of Evidence 801(d)(2) provides that a statement is not hearsay if ‘the statement is offered against a party and is. . . his own statement.’”). People often tell me, “that’s just hearsay, so, of course, that’s not admissible in court” but that Everyman assumption, basic in its truth, overlooks the above exception—as well as a prosecutor’s ability to craft a question or series of questions that will lead to the admissibility of damning text messages.
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