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Police Blotter: Verizon forced to turn over text messages

Justice Department gets judge's approval to obtain archived SMS text messages from wireless carrier without first obtaining a warrant.

Police Blotter is a weekly report on the intersection of technology and the law.

What: U.S. Department of Justice seeks archived SMS text messages from Verizon Wireless without obtaining a warrant first.

When: District judge rules on October 30; magistrate judge completes review of archived text messages on Friday.

Outcome: Prosecutors receive the complete contents of defendant's text messages.

What happened, according to court documents:
It may not be that well known outside of police and telecommunications circles, but odds are excellent that your mobile phone provider saves copies of your SMS text messages. In a case that Police Blotter wrote about last year, federal police obtained logs of archived text messages from two unnamed wireless providers.

In addition, a judge in the Kobe Bryant sex case ordered the phone provider to turn over archived messages. Text messages were also part of the trial involving the attempted murder of rapper 50 Cent.

(By the way, here is one way to send almost-anonymous text messages.)

The most recent case dealing with SMS text messages does not involve a celebrity, though. It involves Susan Jackson, who pleaded guilty to wire fraud involving unauthorized transfers from her employer's bank account to her own NASA Federal Credit Union account.

To buttress her request for a minimum sentence, Jackson submitted letters that she said were from friends, employers, and relatives, but the U.S. Secret Service asserts the documents were altered or doctored. If that is true, it could amount to an additional charge of obstruction of justice.

One person allegedly said that Jackson urged him, "using text messaging and e-mail," to go along with the alterations.

The U.S. Department of Justice asked for a subpoena ordering Verizon Wireless to turn over the contents of text messages for phone number (301) 325-XXXX. The request was made under 18 USC 2703(b)(1)(b)(i) and (ii), which do not require probable cause and a search warrant. Instead, all prosecutors must do is claim--and this is much easier--that the records are "relevant and material" to an investigation. (The Justice Department says this is fine because the text messages were "opened communications," meaning that they were already read by the recipient and should therefore be easier to obtain.)

Jackson's lawyer opposed the request, saying that a proper search warrant was required. On October 30, U.S. District Judge Richard Roberts sided with the prosecution and said that only a subpoena was needed.

Verizon complied. It turned over three sets of documents: information about the account holder linked to that phone number, a list of the complete contents of the text messages sent or received by cellular telephone number (301) 325-XXXX between June 6 and October 31, 2007, and a log of whom Jackson sent messages to from her Verizon e-mail address. Note that Verizon did not keep copies of the actual contents of her e-mail messages.

Because Jackson alleged that the text messages might involve sensitive attorney-client communications, the court appointed a magistrate judge to review them. Magistrate Judge Alan Kay concluded that the text messages did not involve attorney-client privilege and recommended they be turned over to prosecutors "in their entirety."

Excerpts from Justice Department's brief:
Unfortunately, the defendant's Internet services provider, Verizon Internet Services, Inc., has advised the government that it does not store the content of its subscribers' e-mail communications...

It does maintain, however, a "transactional log" for its accounts, including the defendant's account...Since the information will not contain the content of any communications, it is not believed that the defendant has any basis to contest production.

Excerpts from magistrate judge's report:
Verizon produced a package with the contents of text messages that were sent or received by cellular telephone number (301) 325-(XXXX) between June 6 and October 31, 2007. While a few of the messages make reference to Jackson's court case or meetings with her attorney, none of them appear to contain any communications between Jackson and her attorney. For example, on June 6, 2007, at 3:11 p.m. the cellular phone number in question received a text message from cellular phone number (240) 687-(XXXX) that asked "When is ur crt. date?" and approximately one minute later cellular phone number (301) 325-(XXXX) responded "29th." Approximately four minutes later, the person sending messages from (240) 687-(XXXX) then asked, "Did u get all the letters u needed? And what is ur atty. saying?" to which the person sending messages from (301) 325-(XXXX) responded "I meet w/her on Friday." The undersigned did not locate any other text messages that appear to relate to Jackson's court case or that might constitute a communication between Jackson and her attorney...

Verizon made no representations that the package produced reflected all text messages sent or received by (301) 325-(XXXX). The government's subpoena requested text message information from June 21, 2007 until the date of Judge Roberts' Order on October 30, 2007. The messages actually produced cover the following dates (all in 2007): June 6, June 12-14, June 17, June 19, July 3-4, and October 23-31. Whether any messages were sent or received on other days during this time period, and if so why Verizon did not produce them, is unclear.

Verizon produced transaction logs for Jackson's e-mail address...The e-mail transaction log indicates the date and time that each e-mail was sent and the e-mail address of the recipient. The pages of the transaction log that Verizon provided contain records of e-mails sent by Jackson between June 11, and July 9, 2007. The log shows 33 e-mails between Jackson and her attorney, Dani Jahn of the Federal Public Defender's Office, between June 13 and July 9, 2007. Verizon did not produce the contents of any of these e-mails....