Police blotter: Judge OKs text message use in drug case

In this week's installment, judge says police can obtain text messages archived by wireless providers.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: A man accused of involvement in a Washington, D.C., cocaine-distribution ring objects to his text messages being handed over to police.

When: U.S. District Judge Ellen Segal Huvelle ruled on Aug. 10.

Outcome: Huvelle lets text messages be used as evidence.

What happened, according to court documents:
Broadband companies tend not to save copies of people's e-mail. That means snoopy divorce lawyers and curious FBI agents who show up with a subpoena or search warrant generally will be out of luck.

But text messages sent on one's cell phone are a different story, as one alleged drug dealer in the Washington, D.C.-area learned firsthand.

On Oct. 24, 2005, federal police raided a home on Potomac Drive in Fort Washington, Md.--just south of the Washington Beltway. They allegedly seized about 213 pounds of cocaine and about 6.5 pounds of crack cocaine. Antoine Jones and four other men were caught up in the raid.

The raid represented the culmination of an extensive amount of surveillance that the FBI and other federal police had conducted--both physical and electronic.

Part of the electronic surveillance was done by obtaining logs from two unnamed wireless providers. According to federal authorities, the logs contained archived text messages that were sent by Jones and alleged co-conspirator Lawrence Maynard.

In the words of the court: "On Aug. 10, 2005, and again on Aug. 18, 2005, Magistrate Judge Alan Kay issued search warrants to two electronic communication service providers for stored text messages that had been transmitted over cellular telephones used by Jones and Maynard."

Jones, who is awaiting trial on charges of conspiracy to distribute cocaine and use of a communication facility to traffic in drugs, filed a brief claiming that the search warrants violated the federal Wiretap Act.

Huvelle ruled on Aug. 10 that the search warrants were permissible "because the Wiretap Act does not apply to the government's acquisition of text messages held in storage at electronic communication service providers."

Translation: The Wiretap Act only applies to live intercepts, not archived e-mail or SMS messages. In general, a lower legal standard applies to archived messages. (As an aside, the government claims that technology to capture the contents of text messages had "only become available to law enforcement within recent weeks.")

Jones also was wiretapped, which Huvelle concluded was done in compliance with relevant federal law.

In addition, his movements were monitored through a GPS tracking device placed on his Jeep Cherokee. While the feds obtained a court order for the GPS tracker, they kept it on Jones' truck after the order expired, claiming that no court approval was necessary anyway. ("Even in the complete absence of a court order," it is legal, the U.S. Justice Department claims.)

This is not a new debate. A CNET News.com article published in January 2005 shows that courts are divided about whether a court order is required to install GPS trackers. Huvelle split the difference, saying that no court approval was necessary when the Jeep Cherokee was on a public road.

Excerpt from Huvelle's opinion:
Jones' argument that the text message affidavits lacked probable cause also misses the mark. The task of an issuing magistrate, when assessing probable cause for search warrants is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place...The court easily concludes that the information contained in Special Agent Yanta's supporting affidavits was sufficient to establish probable cause for the text message warrants.

The 29-page Aug. 10 affidavit, which served as the foundation upon which subsequent affidavits submitted in support of wiretap and search warrant applications were based, references information provided by three confidential sources who had firsthand knowledge of Jones' illicit activity...The affidavit further provides the basis for investigators' belief that Jones and Maynard were using text messaging in an attempt to conceal their alleged narcotics trafficking activities.

First, analysis of pen register data indicated that several weeks prior to Aug. 10, 2005, the target cellular telephones showed an increase in text messaging from 50 percent of all activations to 90 percent. And second, the technology to capture the contents of text messages had "only become available to law enforcement within recent weeks."

In summary, the court finds that the affidavit clearly establishes probable cause to believe that Jones operated a conspiracy to distribute narcotics and that Jones and Maynard were using text messages on their phones to further that conspiracy. Because the Aug. 18 affidavit contained all of the foregoing information, the court likewise finds that it is sufficient.