Will the Fourth Amendment Apply to Text Messages?

Should the Fourth Amendment's protections against warrantless search and seizures carry over into the digital realm, especially given the ubiquity of text messages? For privacy advocates, the obvious answer is yes. United States law, on the other hand, is still up in the air. Now the question is being taken up in a Rhode Island murder case, State of Rhode Island v. Michael Patino.

It started with a 911 call placed by Trisha Oliver, requesting an ambulance for her six-year-old son, Marco Nieves, who had stopped breathing. When Cranson Police Sgt. Michael Kite arrived on scene, he found Trisha, her 14-month-old daughter Jazyln, and boyfriend Michael Patino in an apartment that was in disarray. While there, Kite found Trisha's cell phone, searched it, and came across the following text from Oliver to Patino: "Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg." According to Kite, other text messages were found on the phone that included profanities and references made to Patino punching Marco three times.

Marco eventually died from his injuries, and authorities charged Patino with murder. But, as the State of Rhode Island Superior Court noted in a 190-page opinion on the case, "Court holds that the Defendant has a reasonable expectation of privacy in his text messages and in the apartment where the subject cell phones were searched and seized so as to grant him standing, under the  Fourth Amendment, to challenge the legality of the searches and seizures of those phones and their contents by the police."

That would mean authorities would be required to secure a warrant for any phone that might have information critical to the investigation and prosecution of a crime. Currently, states—not the Supreme Court—are navigating this collision of technology, privacy, and justice.

That this is even a question is rather stunning. The court's statement, in a refreshing bit of tech-savvy, hit the nail on the head: "Text messages are often raw, unvarnished, and immediate; revealing the most intimate of thoughts and emotions to those who are expected to guard them from publication." We now have these devices on our person almost all the time. They are, in essence, receptacles for our thoughts—external hard drives for the mind. Accessing them is almost like tapping the brain and forcing information out, and that can't be done without then violating the Fifth Amendment protection against self-incrimination.

Also interesting is that the Rhode Island Superior Court applied Fourth Amendment protection to a device—or "place"—and not just a person. Though it isn't the first occasion; Ohio's Supreme Court ruled warrantless searches of electronic devices were illegal, too.

"The Fourth Amendment generally protects people not places, and more specifically protects conversational privacy," writes the Electronic Frontier Foundation's Hanni Fakhouri. That flows directly from the seminal case Katz v. United States, which found that a warrantless wiretap of a phone booth violated the Fourth Amendment. It didn't matter that Katz didn't own the phone booth or the equipment used to make the call. He still had an expectation that his conversation wouldn't be intercepted by the police or other eavesdroppers.

The State of Rhode Island v. Michael Patino case is now being considered by the Rhode Island Supreme Court. The EFF submitted an amicus curiae brief on Monday asking the court to affirm the lower court's decision. Per the brief:

Text messaging is the 21st Century phone call," writes the EFF in the brief. "By focusing on the technological realities of text messaging and the serious threat posed by warrantless intrusions into a ubiquitous form of communication in the United States, the lower court correctly held that defendant Michael Patino had standing to challenge the warrantless search of the text messages and correctly suppressed both the texts and other evidence obtained as a fruit of the initial, illegal search under the Fourth Amendment to the U.S. Constitution and Article I, Section 6 of the Rhode Island State Constitution.

EFF makes reference to Kyllo v. United States, in which the Supreme court clearly stated that it is "foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."

The State of Rhode Island will likely appeal. Eventually, the Supreme Court might even consider the issue, though so far they've allowed states to establish their own case law. But considering the current composition of the nation's highest court, if Rhode Island v. Patino does land before the nine Supreme Court Justices, a key decision about the intersection of technology, privacy, and justice could go either way.