Police reading of text messages on defendant’s cell phone as they came in violated the Washington Privacy Act. It is broader than Title III. The mere possibility that somebody else would see or intercept the text message does not defeat the reasonable expectation of privacy. State v. Roden, 2014 Wash. LEXIS 158 (February 27, 2014):
¶3 Longview police arrested Lee for possession of heroin and seized his iPhone. The iPhone, which continually received calls and messages at the police station, was handed over to Detective Kevin Sawyer when he started his shift that evening. The police apparently did not place the phone in an evidence or inventory locker or otherwise secure it after Lee’s arrest. The record does not indicate how long officers kept possession of the phone before giving it to Detective Sawyer.
¶4 Detective Sawyer looked through the iPhone for about 5 or 10 minutes and saw a text message from a contact identified as “Z-Jon.” It read, “I’ve got a hundred and thirty for the one-sixty I owe you from last night.” Verbatim Report of Proceedings (VRP) (Apr. 29, 2010) at 11. Posing as Lee, Sawyer sent Z-Jon a text message reply, asking him if he “needed more.” Id. Z-Jon responded, “Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I’m only payin’ one eighty for it, instead of two Ts for two hundred.” Id. Detective Sawyer recognized that Z-Jon was using drug terminology, and through a series of exchanged messages, Detective Sawyer arranged a meeting with Z-Jon purportedly to sell him heroin. When Roden arrived for the transaction, he was arrested.
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¶8 Washington’s privacy act broadly protects individuals’ privacy rights. See ch. 9.73 RCW; State v. Williams, 94 Wn.2d 531, 548, 617 P.2d 1012 (1980). It is one of the most restrictive electronic surveillance laws ever promulgated. State v. Faford, 128 Wn.2d 476, 481, 910 P.2d 447 (1996) (citing State v. O’Neill, 103 Wn.2d 853, 878, 700 P.2d 711 (1985) (Dore, J., concurring in part, dissenting in part)). The act prohibits anyone not operating under a court order from intercepting or recording certain communications without the consent of all parties. RCW 9.73.030, .040, .090(2). Overall, the act “significantly expands the minimum standards of the federal statute[, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520,] and offers a greater degree of protection to Washington citizens.” O’Neill, 103 Wn.2d at 879 (Dore, J. concurring in part, dissenting in part).
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¶12 Roden’s messages to Lee were private communications. Text messages encompass many of the same subjects as phone conversations and e-mails, which have been protected under the act. See Faford, 128 Wn.2d at 488; Christensen, 153 Wn.2d at 200-01; Townsend, 147 Wn.2d at 680. Roden manifested his subjective intent that the text messages would remain private by sending them to the cell phone of a personal contact. Roden did not use a group texting function, which enables text messages to be exchanged between multiple parties, or indicate in any other manner that he intended to expose his communications to anyone other than Lee. See VRP (Apr. 29, 2010) at 25. Moreover, the illicit subject matter of Roden’s text messages indicates that he trusted the communication was secure and private.¶13 We reject the State’s argument that a subjective expectation of privacy in a text message conversation is unreasonable because of the possibility that someone could intercept text messages by possessing another person’s cell phone. In the context of new communications technology, we have continually held that the mere possibility of intrusion will not strip citizens of their privacy rights. Faford, 128 Wn.2d at 485 (citing State v. Young, 123 Wn.2d 173, 186, 867 P.2d 593 (1994); State v. Myrick, 102 Wn.2d 506, 513-14, 688 P.2d 151 (1984)); see also Townsend, 147 Wn.2d at 678.
¶14 Sophisticated text messaging technology enables “[l]ayered interpersonal communication[s]” that reveal “intimate … thoughts and emotions to those who are expected to guard them from publication.” State v. Patino, No. P1-10-1155A, slip op. at 83, 70 (R.I. Super. Ct. Sept. 4, 2012). Text messaging is an increasingly prevalent mode of communication and text messages are raw and immediate communications. State v. Hinton, No. 87663-1, slip op. at 16 (Wash. Feb. 27, 2014). Individuals closely associate with and identify themselves by their cell phone numbers, such that the possibility that someone else will possess an individual’s phone is “unreflective of contemporary cell phone usage.” Patino, slip op. at 70.
¶15 The possibility that an unintended party can intercept a text message due to his or her possession of another’s cell phone is not sufficient to destroy a reasonable expectation of privacy in such a message. The Court of Appeals below relied on State v. Wojtyna, 70 Wn. App. 689, 855 P.2d 315 (1993), where it noted that one who transmits a message to a pager “‘runs the risk that the message will be received by whomever is in possession of the pager.’” 70 Wn. App. at 694 (quoting United States v. Meriwether, 917 F.2d 955, 959 (6th Cir. 1990)). The Court of Appeals’ reliance on Wojtyna overlooks the significant differences between pager and text message communications. There, the court held that Wojtyna’s phone number, as displayed on a pager that he messaged, was not a private communication under the privacy act. Id. at 695-96. The back-and-forth text messaging conversation here is much more like e-mail exchanges and telephone calls—which the act plainly protects—than a simple informational statement that is sent to a pager. Unlike pagers, cell phones convey substantive, often confidential information and provide options to password-protect their contents. As text messaging increasingly becomes a substitute for more traditional forms of immediate communication, text messages should be afforded the same protections from interception that are recognized for telephone conversations. See State v. Clampitt, 364 S.W.3d 605, 611 (Mo. Ct. App. 2012) (noting that “society’s continued expectation of privacy in communications made by letter or phone call demonstrates its willingness to recognize a legitimate expectation of privacy in the contents of text messages”). We have repeatedly affirmed traditional expectations of privacy in the context of new communications technology notwithstanding some possibility of interception.
Accord: State v. Hinton, 2014 Wash. LEXIS 159 (February 27, 2014).
