The State Privacy Act, the Text Messages and Interception

After a Superior Court Judge in the state of Washington found him guilty, “on stipulated facts”, of attempted possession of heroin, Jonathan Roden appealed his conviction to the Washington Supreme Court.  State v. Roden, 2014 WL 766681 (2014). The trial was a benchtrial.  Petition for Review – Washington Supreme Court, State v. Roden, 2012 WL 7763210. 

Before he went to trial, Roden “moved to suppress” certain evidence, claiming it was  “obtained in violation of article I, section 7 of the Washington State Constitution, the [state] privacy act, and the 4th Amendment to the United States Constitution.”  State v. Roden, supra.  As Wikipedia notes, every U.S. state has its own constitution, the provisions of which essentially supplement the provisions of the U.S. Constitution.  Article 1 § 7 of the Washington State Constitution provides as follows:  “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

The trial judge denied Roden’s motion to suppress under all three theories, so after he was convicted, Roden appealed that ruling to the Washington Court of Appeals, which upheld his conviction.  State v. Roden, 279 P.3d (Washington Court of Appeals 2012). Roden then asked the Washington Supreme Court to review the denial of his motion to suppress, and it took the case.  State v. Roden, supra.

This, according to the Supreme Court’s opinion, is how the prosecution arose:

Longview police arrested [Daniel] Lee for possession of heroin and seized his iPhone. The iPhone, which continually received calls and messages at the police station, was handed over to Detective Kevin Sawyer when he started his shift that evening. The police apparently did not place the phone in an evidence or inventory locker or otherwise secure it after Lee's arrest. The record does not indicate how long officers kept possession of the phone before giving it to Sawyer.

Sawyer looked through the iPhone for about 5 or 10 minutes and saw a text message from a contact identified as `Z–Jon.’ It read, `I've got a hundred and thirty for the one-sixty I owe you from last night.’ Verbatim Report of Proceedings (VRP) (Apr. 29, 2010) at 11. Posing as Lee, Sawyer sent Z–Jon a text message reply, asking him if he `needed more.’ . . . Z–Jon responded, `Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I'm only payin' one eighty for it, instead of two Ts for two hundred.’ . . .

Sawyer recognized that Z–Jon was using drug terminology, and through a series of exchanged messages, Sawyer arranged a meeting with Z–Jon purportedly to sell him heroin. When Roden arrived for the transaction, he was arrested.

State v. Roden, supra.

In his appeal to the Washington Supreme Court, Roden relied solely on all three of the theories he relied on before the Court of Appeals; the court, however, decided the case under the state’s Privacy Act, and therefore did not address whether the 4^th Amendment or the provisions of Article 1 § 7 of the state Constitution were violated by the officers’ conduct.  State v. Roden, supra.

The Supreme Court began its analysis of Roden’s arguments by noting that the state Privacy Act, Revised Code of Washington § 9.73.030, provides, in part, that

[I]t shall be unlawful for ... the state of Washington, its agencies, and political subdivisions to intercept, or record any:

(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.

State v. Roden, supra (quoting Revised Code of Washington § 9.73.030(1)).  The court also noted that under another section of the act -- § 9.73.050 – “[e]vidence obtained in violation of the act is inadmissible for any purpose at trial.”  State v. Roden, supra.

The Supreme Court began its analysis of whether the officers’ conduct violated the Privacy Act by noting that

[t]here are four prongs we consider when analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication. . . .  At issue here is whether the text messages were `private communications’ and if so, whether they were `intercepted’ within the meaning of the statute.

State v. Roden, supra.  Since only issues (1) and (2) were at issue, I am assuming the prosecution conceded that (3) and (4) were established, given the facts in the case.

The Supreme Court began its analysis of whether the text messages were “private communications” under the statute by noting that the Privacy Act does not

define the word `private,’ but we have adopted the dictionary definition: `”belonging to one's self . . .  secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something . . . a secret message: a private communication . . . secretly: not open or in public.’” State v. Townsend, 147 Wash. 2d 666, 57 P.3d 255 (Washington Supreme Court 2002). . . (quoting Kadoranian v. Bellingham Police Dep't, 119 Wash.2d 178, 829 P.2d 1061 (Washington Supreme Court 1992)). . . .

In determining whether a communication is private, we consider the subjective intention of the parties and may also consider other factors that bear on the reasonableness of the participants' expectations, such as the duration and subject matter of the communication, the location of the communication, and the presence of potential third parties. State v. Townsend, supra. . . . We will generally presume that conversations between two parties are intended to be private. State v. Modica, 164 Wash.2d 83, 186 P.3d 1062 (Washington Supreme Court 2008).

State v. Roden, supra. 

The Supreme Court began its analysis by explaining that Roden’s messages to Lee

were private communications. Text messages encompass many of the same subjects as phone conversations and e-mails, which have been protected under the act. . . . Roden manifested his subjective intent that the text messages would remain private by sending them to the cell phone of a personal contact. Roden did not use a group texting function, which enables text messages to be exchanged between multiple parties, or indicate in any other manner that he intended to expose his communications to anyone other than Lee. Se. . . Moreover, the illicit subject matter of Roden's text messages indicates that he trusted the communication was secure and private.

We reject the State's argument that a subjective expectation of privacy in a text message conversation is unreasonable because of the possibility that someone could intercept text messages by possessing another person's cell phone. In the context of new communications technology, we have continually held that the mere possibility of intrusion will not strip citizens of their privacy rights. State v. Faford, 910 P.2d 447 (Washington Supreme Court 1996).

State v. Roden, supra. 

The Supreme Court elaborated on that point:

[s]ophisticated text messaging technology enables `[l]ayered interpersonal communication[s]’ that reveal `intimate . . . thoughts and emotions to those who are expected to guard them from publication.’ State v. Patino, No. P1–10–1155A (Rhode Island Superior Court 2012). Text messaging is an increasingly prevalent mode of communication and text messages are raw and immediate communications. State v. Hinton, No. 87663–1 (Washington Supreme Court 2014). Individuals closely associate with and identify themselves by their cell phone numbers, such that the possibility that someone else will possess an individual's phone is `unreflective of contemporary cell phone usage.’ State v. Patino, supra.

State v. Roden, supra. 

The court also explained that the “possibility” that an unintended party can

Intercept a text message due to his or her passion of another's cell phone is not sufficient to destroy a reasonable expectation of privacy in such a message. The Court of Appeals below relied on State v, Wojtyna, 70 Wash. App. 689, 855 P.2d 315 (Washington Court of Appeals 1993), where it noted that one who transmits a message to a pager ‘”runs the risk that the message will be received by whomever is in possession of the pager.”’ State v. Wojtyna, supra  (quoting U.S. v. Meriwether, 917 F.2d 955 (U.S. Court of Appeals for the 6th Circuit 1990)).

The Court of Appeals' reliance on Wojtyna overlooks the significant differences between pager and text message communications. There, the court held that Wojtyna's phone number, as displayed on a pager that he messaged, was not a private communication under the privacy act. State v. Wojtyna, supra.  The back-and-forth text messaging conversation here is much more like e-mail exchanges and telephone calls -- which the act plainly protects -- than a simple informational statement that is sent to a pager. Unlike pagers, cell phones convey substantive, often confidential information and provide options to password-protect their contents. As text messaging increasingly becomes a substitute for more traditional forms of immediate communication, text messages should be afforded the same protections from interception that are recognized for telephone conversations. . . .  We have repeatedly affirmed traditional expectations of privacy in the context of new communications technology notwithstanding some possibility of interception.

State v. Roden, supra. 

The Supreme Court then took up the issue as to whether there had been an “interception” of private communications.  State v. Roden, supra.  It began by noting that the Court of Appeals, in its ruling on Roden’s arguments, had resolved this case under

[State v. Townsend, 147 Wash.2d 666, 57 P.3d 255 (Washington Supreme Court 2002)], finding there was no violation of the privacy act because Roden impliedly consented to the recording of his text messages. State v. Roden, 169 Wash. App. at 67, 279 P.3d 461 (Court of Appeals) (Roden `anticipated that the iPhone would record and store the incoming messages’).

But Townsend turned on a different question than the one presented here. In Townsend, we held that Townsend's communications to Amber were private, but the act was not violated because Townsend knew e-mails are inherently recorded and thus he impliedly consented to the recording. . . . Here, the question is not whether a recording was lawful; the question is whether the messages were intercepted under the act. Because we find the privacy act was violated by the interception of the private text messages, we do not address whether they were unlawfully `recorded’ within the meaning of the act.

State v. Roden, supra (emphasis in the original).

The Supreme Court then took up the issue of “interception”, noting, that the state Privacy Act “does not define the term `intercept.’”  State v. Roden, supra.  It explained that when a statute does not define a word, words should be

given their ordinary meaning. . . . Finding the detective's action to be an interception is consistent with the ordinary definition of `intercept’ -- to `stop . . . before arrival . . . or interrupt the progress or course.’ WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1176 (2002). Unlike [State v. Townsend, supra,] where the defendant communicated directly with the officer's fictitious online profile, the detective here intercepted text messages directed to an actual acquaintance.

State v. Roden, supra. 

The Supreme Court noted, first, that it was rejecting the premise that the

detective did not intercept the messages because he was a party to the communication. Amicus curiae Washington Association of Prosecuting Attorneys (WAPA) cites foreign case law finding that a caller cannot claim an interception of a private communication where that caller elected to continue a phone conversation with an officer who answered a third party's phone and posed as the intended recipient of the call or as that person's accomplice. . . .

While a caller placing a voice call hears the recipient's voice and has the opportunity to detect deception, sending a text is more like mailing a letter. The sender addresses mail to a particular individual and reasonably expects the communication to be routed to and received by the addressee. Reading a letter addressed to another certainly does not render that person the intended recipient, and the ordinary meaning of `intercept’ would encompass opening and reading a letter in someone else's mailbox before they receive it. See WEBSTER’S, supra, at 1176.

State v. Roden, supra. 

The court then explained that

Detective Sawyer did not merely see a message appear on the iPhone. Instead, he manipulated Lee's phone, responded to a previous text from Roden, and intercepted the incoming text messages before they reached Lee. Whether it is also a violation of the act to access text messages that have already been received by the intended recipient and remain in storage is not the question before us today.

We decline to find there was no interception here based on the fact that the messages were in electronic storage when they reached the phone -- a technicality that has no relevance under our state statute.

State v. Roden, supra.  (As the court noted, the issue of electronic storage does arise under federal law, notably, under the provisions of the Stored Communications Act.)

The court therefore held that

the privacy act was violated because the detective intercepted Roden's private communications without Lee's or Roden's consent and without a court order. We reverse the Court of Appeals and reverse Roden's conviction without prejudice.

State v. Roden, supra.  The fact the conviction is reversed without prejudice presumably means that Roden can be tried again, on the same charge, but the text messages would presumably not be admissible at that trial.