There is no denying the importance of text messages in the 21 century, as they have become the fastest and simplest means of communication between people. Their importance as a means of communication has resulted in numerous constitutional questions in different courts all over the state. The police have relied on these texts messages to collect evidence; such activity has led to the arrest and prosecution of certain individuals. While indeed the texts have provided reliable sources of incriminating evidence for the prosecution, the manner in which this evidence has been gathered has always raised fundamental constitutional questions.
The first question that courts have tried to address is whether the Fourth Amendment protects text messages sent via a cell phone. The Fourth Amendment guarantees the right of the people to be free from unreasonable government searches and seizures. This is the right to the persons privacy to be free from unwarranted searches. Such right will be limited, however, with the relevant warrant, obtained upon probable cause and supported by an oath. This right was stated in the case of Silverman v. United States, 365 U.S.505, 511(1961), as being the right of every person to hideaway in the secrecy of his/her house and have freedom from uncalled for government interference and intrusion. The extent of this protection has attracted various interpretations before courts, with the principle places of departure being its application as regards the tactics of the police in obtaining evidence. Indeed, while the right is meant to curb police excesses when collecting evidence, as per Davis v. United States, 328 U.S.582, 597(1946), there is the fear that it handcuffs the police in their battle to bring criminals to book (US Supreme Court, 2011). The Fourth Amendment prohibits the police from unreasonable searches, which essentially means that the police must take a warrant before conducting a search. However, there is an exemption to the prerequisite of a search warrant, under the search incident to arrest, which permits a police officer to carry out a search of the person arrested in the interest of protecting himself/herself from hidden weapons and safeguarding evidence that may be destroyed if not seized.
In deciding whether the Fourth Amendment protects cell phone text messages, it is important to underline the defining characteristic of a text message. The cell phone text messaging has become a common means of communication in the 21st century. Over 87% of American adults own a cell phone; 80% of them send and receive texts messages; each one of them receives an average of 44.2 messages daily. As for the young adults (18-25 years old), each of them receives an average 3500 messages per month. All of these adults with cell phones carry them in their pockets or purses. If the courts will construe that the Fourth Amendment does not protect cell phone messages, the rights of all of these people will be at stake. The Court noted the importance of text messages in the case of City of Ontario, Cal. v. Quon, 130 S.Ct.2619, 2630(2010), where it observed that the text message communication was of such a pervasive nature that most people were bound to them as essential means or important tools for self-expression, or even self-identification (Lemert, 2013). This is to underscore the fact that the interpretation of the Fourth Amendment must be construed in such a manner that it takes into account the digital advancements that are taking place.
The second question that must be answered is whether there is a reasonable expectation of privacy when texts are sent. The expectation of privacy in communications has been handled before by the courts and decisions rendered on the same. In the case of Smith v. Maryland, 442 U.S 735(1980), the Supreme Court stated that there was no expectation of privacy in the communication conducted through a pager. Other courts have tended to rely on this decision, such as the appellate court in the case of State of Washington v. Shaw D. Hinton, 169 Wn. App.28, 31,286 p.3d 476 (2012). The appellate court stated that Hinton should have lost his reasonable expectation of privacy once he had sent the message, as the recipients cell phone could have been with anyone, including the government. The appellate court largely relied on the Supreme Court decision in the case of Smith v. Maryland. However, in answering the question of expectation of privacy in relation to text messages, the very nature of the text messages must be the relevant point of analysis. Comparing the contents of a cell phone text message to those of a pager is to miss the point of text messages entirely since cell phones are an important means of communication. Pagers, on the other hand, are restricted to conveying just numbers, which may not be so important. Messages convey detailed information from one person to another, information that relates to the personal nature of the sender or recipient, information which can be relied upon as it is real time communication (US Supreme Court, 2011). This nature of information can be compared to the numbers that are associated with pagers, for those numbers cannot be acted upon by anyone else who does not know what they are for. Texts messages, on the other hand, are complete means of communication, mostly in a very clear and simple manner, and usually detailed. There should be a reasonable expectation of privacy where such information is involved, and expectation of privacy is not lost ones the message is sent.
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In conclusion, the determination as to whether the Fourth Amendment protects text messages is premised on the interpretation of the concept of privacy as reasonableness as provided for in the Amendment. The continued growth and development requires the construction of the proper law in order to accommodate such developments and protect and safeguard the constitutional rights as provided for in the law. It is indeed difficult to argue that the Fourth Amendment does not protect text messages, when one views and critically considers the nature of texts messages and their importance in the 21st century. In this view, there should be a reasonable expectation of privacy when sending text messages.