Text messages stop being legally private the instant you send them, court rules

The Supreme Judicial Court ruled today that a man's text messages can be used against him in a criminal case because they were recovered from another man's phone.

The court has previously ruled that the contents of a person's phone have privacy protections under both the federal and state constitutions, but in a precedent-setting ruling today, the court said those rights disappear once somebody composes a text message and hits Send.

At issue were text messages a Massachusetts man, Jorge Delgado-Rivera, allegedly sent to somebody in Texas in 2016 with details of various illegal drug shipments. Police in Texas conducting a drug investigation searched the recipient's phone after a traffic stop and forwarded the information to police here, who started an investigation that led to the indictment of Delgado-Rivera and six other men - including the man in Texas - on cocaine-trafficking charges.

A Middlesex Superior Court judge agreed with a request from Delgado-Rivera to keep the text messages from being used against him, saying he had "standing," or a legal right to request the messages be barred from court use, just as the recipient did. In fact, the judge ruled the messages could not be used as evidence against the recipient because there were questions whether a Texas police officer had legal authority to search the man's phone, in part because the man signed a consent form written in English even though he spoke only Spanish.

In its ruling today, however, the state's highest court concluded that message senders lose their privacy rights as their texts go across networks to their recipients.

Any purported expectation of privacy in sent text messages of this type is significantly undermined by the ease with which these messages can be shared with others. In addition to simply displaying the message to another, as would be possible with non electronic, written forms of communication, a recipient also can forward the contents of the message to hundreds or thousands of people at once, or post a message on social media for anyone with an Internet connection to view. See, e.g., Patino, 93 A.3d at 56 n.21 ("We can think of no media more susceptible to sharing or dissemination than a digital message, such as a text message or email, which vests in the recipient a digital copy of the message that can be forwarded to or shared with others at the mere click of a button"). Thus, Delgado-Rivera had no reasonable expectation of privacy under the Fourth Amendment in the text messages at issue because, once they were delivered, Garcia-Castaneda, as the recipient, gained "full control of whether to share or disseminate the sender's message." Id. at 56. The technology used by Delgado-Rivera to communicate with Garcia-Castaneda effectively facilitated this transfer of control.

The ruling applies to plain-text messages, not encrypted messages, which leads to an issue the court said it would not address today, a more subtle issue involving the difference between Massachusetts's Article 14 privacy rights and rights under the similar federal Fourth Amendment. Currently, Massachusetts judge have to use a two-part test for determining certain privacy rights under Article 14: First they have to determine whether a person has standing to contest something seized from them under Article 14, then if they do, whether their rights were violated. In contrast, federal judges simply determine whether somebody's privacy rights were violated.

In most cases, the outcome would be the same, but, as in this case, the issue of "possessory interest" in the thing at issue comes into play: Can a person have privacy rights in something the don't own? In past cases, the court has determined that Article 14 can apply for items that a person "repeatedly had used, but did not own or possess."

This trend toward a one-step inquiry focusing on a reasonable expectation of privacy has been pronounced in our case law assessing the constitutionality of digital searches,to which the traditional notions of physical possession underpinning an art. 14 possessory interest may be particularly ill suited.

But the court did not make any declarations on the issue today because lawyers on both sides did not directly address it in their arguments. But in a footnote, the court said the issue might come up in a case involving encrypted messages:

For example, a defendant could send a text message using an encrypted messaging service, where the message subsequently was acquired from the recipient device by law enforcement. Assuming that the defendant could establish a reasonable expectation of privacy based on the use of the encryption technology employed, the defendant would have standing under the Fourth Amendment to contest the search that yielded the text message. Using the two-part analysis under art. 14, however, the defendant likely would be unable to establish standing if he or she had no possessory interest in the recipient device and was not present during the search.This discrepancy cannot stand.