With billions sent each month, more and more Americans are using text messages to communicate with each other. Yet when it comes to protecting the privacy of these messages, courts, legislators, and commentators have struggled to apply outdated statutes and common law doctrine to the realities of this new technology. Exploring the ever-present tension between privacy concerns and law enforcement tactics, this Note examines the privacy issues presented by text messaging technology, focusing on the ability of criminal defendants to suppress text messages seized without warrants. The author begins by briefly describing the technology behind text messaging and then outlines the statutory protections Congress has given electronic communications. The Note then turns to the Supreme Court, describing the relevant Fourth Amendment doctrine that the Court has developed and noting the different standards that have been applied to the search and seizure of oral communications, letters, and containers. The author next analyzes how the lower courts have tried to fit searches of text messages into these frameworks, noting the insufficiency of statutory protections and the inconsistencies that occur when courts analogize searches of cell phones to searches of containers or the seizure of text messages to the seizure of letters. The author ar-gues that text messages are best analogized to spoken, rather than written, communications and presents a test based on the plain view doctrine that would allow law enforcement officers to seize and search a cell phone if they have probable cause to believe that it contains evidence of a crime. The author recommends the adoption of this probable cause approach, arguing that it provides the best balance between a cell phone user’s privacy interests and the interests of law enforcement.
The full text of this Note is available to download as a PDF.