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Court: Cops can read suspect's texts, spring text trap

Washington state ruling means text messages sent to a friend are not private because people know they're stored on smartphones.

Police did not violate the privacy rights of a Washington state man who responded to a text message from the iPhone of his suspected drug dealer only to get arrested on drug charges after arranging to meet up, a Washington appeals court says.

Police had arrested Daniel Lee on drug charges and one officer searched through the text messages on Lee's iPhone, found some suspicious messages from a "Z-Jon" and texted from Lee's phone to ask if Z-Jon "needed more." Then, according to court papers, Z-Jon followed up with a message using drug slang and agreed to meet up with the police officer posing as Lee. That led to the arrest of Jonathan Roden, aka Z-Jon, and his subsequent conviction for attempted possession of heroin.

Roden appealed on the basis that the text messages should have been suppressed as evidence because they were protected under the Washington Privacy Act, which requires that police get consent before intercepting a private communication transmitted by telephone.

But the Washington Court of Appeals disagreed and said that there is no reasonable expectation of privacy with text messages just as there isn't with voice messages left on an answering machine that could be overheard by anyone. The court also said that Roden had implicitly given his consent to the use of the text messages because he understood that they are automatically recorded and stored on the device.

In a dissent, a judge said that under the state privacy law the police were required to get a search warrant to access the text messages, and suggested that the ruling could put any device at risk of search by police without a warrant.

"Under implied consent reasoning, a police officer's simple possession of a smartphone is sufficient to imply or infer consent of the communicating parties. This reasoning can easily and dangerously be extended to allow warrantless State searches of any digital device that police come to possess, all contrary to the Act itself," the dissent said "Following the majority's analysis, any communication that has a traceable electronic or paper trail will not be protected because consent to disclosure can be implied from the trail."

(Hat tip to Forbes.)