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Fourth Amendment Protection in Text Pager Messages:
The Ninth Circuit recently held oral argument in a fascinating case on how the Fourth Amendment protects messages sent and received via pagers. The name of the case is United States v. McCreary, and I have posted the brief for the defense here and the brief for the United States here. You can listen to the audio of the oral argument from mid-October before Judges Hug, W. Fletcher, and Clifton from this link. This potentially is a very important case, so I thought I would blog some relatively detailed thoughts about it. Given the usual pace of such things, the opinion probably will be published in a month or two.

  This appeal involves a string of bank robberies McCreary committed in 2002 along with several co-conspirators. Members of the group communicated with each other largely using MCI/Skytel text pagers. The pagers could send and receive messages in various different ways: first, you could enter in the pin # of the pager from another pager and then type in the message; second, you could go to Skytel's website, enter in the pin, and then send a message over the website; and fourth, you could send an e-mail to the PIN number of the text pager at the "skytel.com" domain. At least at the time, in 2002, MCI/Skytel kept records of all messages sent through its pager system.

  Investigators found out about the group's use of MCI/Skytel pagers and knew several of the pin numbers, so they issued subpoenas to get the records of the calls and the text of the messages sent and received. MCI/Skytel returned records including the actual texts of the pager messages. (I found the record a little unclear here, but that's the basic idea.) The text pager messages proved very helpful to the prosecution, as the members of the conspiracy were very open about what they were doing in their pager messages.

  The legal question in United States v. McCreary is whether the government violated McCreary's Fourth Amendment rights by obtaining the text of the pager messages using a subpoena instead of a search warrant. This big question in turn breaks down into three distinct questions. First, does the legitimate user of a text pager system generally have a Fourth Amendment reasonable expectation of privacy in the contents of his messages? Second, if so, do the facts of McCreary's usage of the pager system fall within that general rule of Fourth Amendment protection? And third, if the Fourth Amendment protects the pager messages, did the subpoena violate the Fourth Amendment?

  Let's take these questions in turn. As to the first question, I think the best answer is yes: the legitimate user of a text pager system generally will have Fourth Amendment protection in the contents of his messages. There are a bunch of reasons why, but the best doctrinal reason is explained in what I wrote on this topic in the forthcoming edition of LaFave, Israel, King & Kerr, Criminal Procedure Ch. § 4.3(c) (3d Ed. forthcoming Jan. 2008). The issue was Fourth Amendment protection in text messages and post-cut-through dialed digits — basically, communications you enter using a telephone or other keypad that are contents rather than dialing of numbers. The same analysis seems to apply to text pager messages.

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