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California Supreme Court Allows Police to Read Text Messages
California Court Allows Police to Review Text Messages by Darren Chaker
In People v. Diaz, --- Cal.Rptr.3d ----, 2011 WL 6158 (Cal.), the California Supreme Court addressed whether police may review text messages contained on a phone belonging to a person who has been arrested consistent with the Fourth Amendment. The court also addressed a secondary issue whether reviewing the text messages 90 minutes post arrest was proper. The court answered each question in the affirmative.
The dissent acknowledged mobile phones like Blackberry, iPhone, etc. may contain information up to 32 gigabytes. However, the court did not address the fact many smartphones also are tied into individual email, Facebook, MySpace, and similar accounts. This information is within the scope of being protected ‘content'.
The contents of a user's email account, stored on an email provider's computers, are akin to the contents a wire containing telephonic communication. Email users store "virtual" papers and effects (emails) in a "virtual" containers (the email account) that is owned by another (the email provider); the user's password serves as the key to the locked virtual home, assuring its exclusive use. I believe such would cross the line of violating federal law. The Stored Communications Act provides a cause of action against anyone who "intentionally accesses without authorization a facility through which an electronic communication service is provided" and obtains access to a communication in electronic storage. 18 U.S.C. § 2701(a)(1), 2707(a). See also, United States v. Councilman, 418 F.3d 67, 76-77 (1st Cir. 2005) (en banc) (by defining "electronic storage" broadly, "Congress sought to ensure that the messages and by-product files that are left behind after transmission, as well as messages stored in a user's mailbox, are protected from unauthorized access."). Thus, "anyone" is "anyone" and law enforcement is not excluded. The SCA has a specific provision for law enforcement to access content, however believe by the court failing to address email or other content tied into a mobile phone could create further confusion since some officers may infer since text messages are contained on a phone, as are email, then all is fair game.
Nonetheless, the court taketh privacy, technology giveth privacy. Here are some simple counter measures to employ if you fear anyone viewing anything on your phone.
Use a password to secure your phone. Most do not. If asked for the password by police, understand another person asserted his right to not disclose information to access his encrypted files, and the court stated he had a Fifth Amendment right to refuse disclosing his password. See, In Re Bouche , United States District Court for the District of Vermont, 2007 WL 4246473 (Nov. 29, 2009)
Encryption. Applications for smartphones are available to create an encrypted folder on your phone where sensitive files may be stored. Likewise, passwords may be encrypted and automatically fill in login information for websites you access. If you are using a BlackBerry Enterprise Server, then the data that flies back and forth between your handheld and the server is encrypted. The data stored on your handheld is a different story. Content Protection will encrypt your emails and other content stored in the machine. By choosing this option, you will be protected if someone were to connect the device to a USB port and attempt to read its memory.
Wiping Application. Just as with computers, software or ‘apps' are available to download that will wipe internet usage history, prior text messages, and call history. Each category may be specified by the user.
Wipe SD Card. Most smart phones come with a mini SD card that hold up to 16+gb. Just as with computers, a SD acts as the smartphone's hard drive. As such, deleted information remains unless specifically wiped in a secure manner. Solution? Use a wiping utility from your computer and either plug your phone into your computer so the SD card mounts like a hard drive, =and able to be securely wiped with software from your computer. Alternatively, remove the SD card and place into SD slot of computer that will be recognized by your computer to be wiped. If you have an iPhone, it will mount as an external drive and file slack may be securely wiped thereafter. I suggest wiping information on a routine basis.
Remote Wipe. Most anti-malware apps have the option of remote wiping. This option allows someone to text a message to your phone, that will commence a wiping sequence of all information on your phone. A question comes to mind whether this could be construed as destruction of evidence. My answer is "it depends". If you call your friend and ask "please send a text to my phone" then, I find it difficult to think your friend could be imputed with knowledge he assisted you in destroying evidence. On the flip side, a charge may be filed against you if evidence was on your phone material to what's alleged. For example, if you are charged with texting threating messages, then I could see the material nature of your phone. However, if you are arrested for DUI and simply don't want your phone viewed by police, then I do not see any nexus to a pending charge.
For most people a password should suffice, along with the knowledge you have the right to refuse access to your phone under your Fifth Amendment right.
About the Author
It's a little too much to write here, so see Extended Author Bio.. Darren Chaker