If you asked an everyday American what rights they are entitled to, they will know a few of the basic ones- the right to bear arms, participate in free speech and discourse, and the right to privacy. However, in the legal world it becomes clear that there is a lot of grey area with respect to these rights, especially as technology changes. In the increasingly digitalized and interconnected world, judges have the duty to interpret laws created in the 18th century and apply them to modern day technology.

 

One of the trickiest pieces of technology to protect is the cell phone. Countless individuals have experienced the perils of texting and instant messaging on a phone- you accidentally send a message to the wrong person, your friend steals your phone and reads your private conversations, or a cell phone gets lost and information is stolen. Despite the risks to mobile phone users originating from the general public, it would also seem that a person’s correspondence can be examined by police officers without a warrant!

 

In late 2009, a drug dealer named Daniel Lee was seized by police in Washington State. Many of his possessions were held by law enforcement officers, one of which was his mobile phone. The phone received a message from a man named Shawn Hinton while in police custody. Hinton wanted to purchase heroin.

 

Detective Kevin Sawyer, who was working on the case, corresponded with Hinton and arranged a meeting place, pretending to be Lee the entire time. Once Hinton arrived he was arrested and then charged with the attempted possession of heroin. Moreover, Detective Sawyer contacted a few other individuals in Lee’s address book in order to see if he could apprehend any more people involved in illegal activities. He arrested one other individual by the name of Jonathan Roden.

 

At the trial for Lee’s two customers, the defense team brought up the point that Detective Sawyer had violated the Washington Privacy Act by taking Daniel Lee’s cell phone without a search warrant. The communications sent by Roden and Hinton were meant for Lee, and thus when Sawyer read them and interacted with the individuals he was violating their privacy rights.

 

Recently a decision has been made on the issue at a Washington appeals court. Judge Joel Penoyar, who was working on the case, sided with the detective. He cited a case which occurred in 1990, where a pager was taken by police and used in a similar manner to catch a drug dealer’s clients. According to the judge presiding over that case, the individuals’ privacy rights were not infringed upon because if a person sends out information, they do not have a ‘reasonable expectation of confidentiality because they cannot be sure that the pager will be in the hands of its owner.’

 

A similar rationale applied to mobile phones. While a message is saved as a draft on a person’s phone, it is protected by privacy rights. Even when it is ‘in transit’ the government does not have the right to intercept the message. However, once it reaches another mobile device, the authorities can use it as incriminating evidence. The same applies to phone calls. While you are talking on the phone with another person, the government has no right to arbitrarily tap your line. But when you leave a voicemail message, it can be used against you.

 

Although the pictures, videos, and messages you send from your phone are not protected from scrutiny by the government, your personal files still are. This became evident in a case taken to court in May of 2010. At a horse race in Baltimore, a few friends were getting rowdy and a law enforcement officer began to physically abuse one of the individuals in question. Another person filmed the attack on their mobile phone. The police officer confiscated the phone and deleted the incriminating video.

 

In October of that year, the cell phone owner filed a lawsuit, stating that his first, fourth, and fourteenth amendment rights were infringed upon. He won the lawsuit and even the Obama administration commended that particular ruling.

 

In summary, there are gradations of legal protection when it comes to mobile phone use. While you have a right to privacy for everything that is located on your phone that you have produced, such as pictures and videos you took yourself, once you have chosen to share them with someone else they are considered to be public property. The same goes for any text messages or pictures you have received from another individual. Essentially, they have given up their rights to privacy by sending them out from their phone.

 

With the increasing prominence of technological in the world and the sharing of information, a person has to educate themselves on their rights in regard to digital devices.

 

For more information:

 

Washington Court of Appeals Ruling: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=410371MAJ

 

Washington Privacy Act: http://apps.leg.wa.gov/rcw/default.aspx?cite=9.73&full=true

 

1990 Pager Ruling (United States of America v. Chester Meriwether): http://scholar.google.com/scholar_case?case=13174046463594031309&q=cell&hl=en&as_sdt=2,5&as_ylo=2012

 

2008 Cell Phone Ruling (Christopher Sharp v. Baltimore City Police Department): http://www.justice.gov/crt/about/spl/documents/Sharp_SOI_1-10-12.pdf

 

US Constitution: http://uscode.house.gov/pdf/Organic%20Laws/const.pdf