Stored Text Messages Ruled Not Subject to Wiretap Act
One of my favorite shows, The Wire, is about to start on HBO, and in a life/art convergence moment, Declan McCullagh has just written about a drug case where according to the opinion the government seized “97 kilograms of cocaine, 3 kilograms of crack cocaine, and in excess of $800,000” in part by using taps and gaining access to text messages. As part of their defense, the defendants claimed that the government’s use of stored text messages and a GPS device to track a car were improper. U.S. District Judge Huvelle ruled that the government access to stored text messages is not subject to the Wiretap Act. The opinion makes the distinction between the Wiretap Act and the Stored Communications Act. The opinion also addresses the use of a GPS device to track the car and found that one does not have an expectation of privacy when on public roads but does have an expectation of privacy at home thus data related to using the device while the subject was at home was suppressed.
In short, Judge Huvelle noted that “An ‘intercept’ is defined in the Wiretap Act as ‘the aural or other acquisition of the contents of any wire, electronic, or oral communication though the use of any electronic, mechanical or other device.’” She then explained “Courts consistently have held that the Wiretap Act governs only the acquisition of the contents of electronic communications that occur contemporaneous with their transmission, and not — as is the case here — the subsequent acquisition of such communications while they are held in electronic storage by third parties.” Next Judge Huvelle pointed out that when considering stored electronic communications the Stored Communications Act controls and that the Act “the procedures the government must follow to access the contents of stored electronic communications ‘are considerably less burdensome and less restrictive than those required to obtain a wiretap order under the Wiretap Act.’”
So for those of you who think that text messages or emails are lost to the ether, they aren’t. According to the Stored Communications Act if the provider stores the information for 180 days or less, the government may gain access to it with a warrant.
As for the tracking device, in the case at hand it appears that the government obtained a warrant to use it, the warrant expired, and the government continued to use the device. It seems that Judge Huvelle’s point about privacy on public roads as opposed to in one’s home is that the government never needed a warrant in the first place when tracking someone in public so the expired warrant did not matter. CNET has previously noted that the Washington Supreme Court has ruled that using a GPS device should require a warrant because “use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen under circumstances where the individual is unaware that every single vehicle trip taken and the duration of every single stop may be recorded by the government.” But the article also quoted Concurring Opinions own Dan Solove as explaining that if the U.S. Supreme Court rules on the use of GPS devices it is unlikely to agree with the Washington ruling.