MD: Use of text messaging is not a waiver of REP for spousal privilege

The state obtained text messages by legal process and admitted them at trial, arguing that the Verizon service agreement was a waiver of any reasonable expectation of privacy in third party records. It is not a waiver of spousal privilege in text messages. Sewell v. State, 2018 Md. App. LEXIS 212 n. 8 (Mar. 6, 2018):

In a footnote, the State suggests that text messages implicate the internet service provider as a third party to the communication, which rebuts the presumption of confidentiality. Appellant consented to Verizon’s privacy agreement, which authorizes disclosure of information pursuant to “subpoenas, court orders or search warrants and as otherwise authorized by law.”

This Court has not ruled directly on this issue, and neither have most other jurisdictions. The few courts that touch on this concern have not held that service providers compromise otherwise confidential electronic communications. The United States Court of Appeals for the Sixth Circuit held that emailers have a reasonable expectation of privacy even in emails “that are stored with, or sent or received through a commercial [internet service provider].” United States v. Warshak, 631 F. 3d 266, 288 (6th Cir. 2010). Other courts have found emails presumptively confidential, thereby not addressing confidential status. See Reaves v. State, 284 Ga. 236, 664 S.E. 2d 207, 210 (Ga. 2008); Fire Truck, Inc. v Emergency One, Inc., 134 P. 3d 570, 572-75 (Colo. App. 2006). In accord with these opinions, we conclude that Verizon’s provision of service does not rebut the confidentiality of appellant’s text messages to his wife.

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