MA: No REP in a sent text message

There is no reasonable expectation of privacy in a text message sent to another cell phone. Commonwealth v. Delgado-Rivera, 2021 Mass. LEXIS 341 (June 1, 2021):

The record here, and the relinquishment of control it represents, is important because “the Fourth Amendment does not protect items that a defendant ‘knowingly exposes to the public.’” Dunning, 312 F.3d at 531, citing United States v. Miller, 425 U.S. 435, 442, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). The judge sought to distinguish between communications that have been shared with a particular individual, such as the intended recipient, and communications that are released “more generally … [in a way] in which [they] can be discovered by members of the public or police or anyone else.” This distinction is not persuasive. “It is well settled that when an individual reveals private information to another, [the individual] assumes the risk that his [or her] confidant will reveal that information,” frustrating the sender’s original expectation of privacy and, in effect, making this once-private information subject to disclosure without a violation of the sender’s constitutional rights. United States v. Jacobsen, 466 U.S. 109, 117, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). In the circumstances here, Delgado-Rivera assumed the risk that the communications he shared with Garcia-Castaneda might be made accessible to others, including law enforcement, through Garcia-Castaneda and his devices. See Alinovi v. Worcester Sch. Comm., 777 F.2d 776, 784 (1st Cir. 1985), cert. denied, 479 U.S. 816, 107 S. Ct. 72, 93 L. Ed. 2d 29 (1986).

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 nonelectronic, 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.

. . .

In reaching the conclusion that Delgado-Rivera had a reasonable expectation of privacy in his sent text messages, the judge relied in large part upon the reasoning of the Washington State Supreme Court in State v. Hinton, 179 Wash. 2d 862, 319 P.3d 9 (2014). In Hinton, the court held that the defendant retained a reasonable expectation of privacy in sent text messages recovered from another individual’s cellular telephone. Id. at 873. The analysis in Hinton, however, is not relevant here, in part because, unlike Delgado-Rivera, Hinton sought to assert privacy rights over text messages delivered to, but never received by, the intended recipient. See id.

Moreover, the relatively few State and Federal courts to have examined this issue have soundly rejected the logic relied upon in Hinton. These assessments uniformly have concluded that the Fourth Amendment does not protect similar text messages. See, e.g., United States v. Jones, 149 Fed. Appx. 954, 959 (11th Cir. 2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1374, 164 L. Ed. 2d 81 (2006) (defendant did not have reasonable expectation of privacy in sent text messages saved on coconspirator’s cellular telephone); United States vs. Bereznak, U.S. Dist. Ct., No. 3:18-CR-39 (M.D. Pa. Apr. 27, 2018) (“courts appear to be in general agreement that there is no reasonable expectation of privacy in electronic content … once they are on a recipient’s device”). See also Fetsch vs. Roseburg, U.S. Dist. Ct., No. 6:11-CV-6343-TC (D. Or. Dec. 31, 2012); Hampton v. State, 295 Ga. 665, 669, 763 S.E.2d 467 (2014); State v. Boyd, 597 S.W.3d 263, 276 (Mo. Ct. App. 2019); State v. Carle, 266 Or. App. 102, 112-114, 337 P.3d 904 (2014); State v. Tentoni, 2015 WI App 77, ¶ 8, 365 Wis. 2d 211, 871 N.W.2d 285.

In sum, Delgado-Rivera lacked a reasonable expectation of privacy in the sent text messages and therefore cannot challenge the search of Garcia-Castaneda’s cellular telephone under either the Fourth Amendment or art. 14.

See State Court Confirms The Obvious: There’s No Expectation Of Privacy In Text Messages Sent To Other People by Tim Cushing

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