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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.

jvarisco (www):
Wouldn't it be moot if the government could simply have obtained a search warrant instead? Surely knowing the bank robbers communicated via text messages establishes probably cause.
11.30.2007 7:13pm
OrinKerr:
jvarisco,

The government would need probable cause that evidence of the crime was stored in records kept about a particular pager account. The trickiest part would be to show that an account was actually used by one of the bank robbers. For example, say you have search warrant to search the robbers' apartment; you search the apartment and find an abandoned text pager. Is that alone enough to get PC to get the messages sent? I'm not sure, but I kinda doubt it; you probably would need to get non-content account records first to show that the account was so-used, and only then get a warrant.
11.30.2007 7:19pm
Ben Barros (mail):
Orin, just a nit, but is there a missing third in the second paragraph?
11.30.2007 10:22pm
whit:
this case seems about the clearest slam dunk i have ever heard vis a vis privacy. OF COURSE you would need a warrant to retrieve the text messages. they were clearly private communications sent with the expectation that they were for the recipient's eyes only. how much more private can you get?

i can't believe this was ever a question. i have disagreed with warrant requirements in some states rulings (for example, i do not think power use #'s for a residence should require a warrant, ...) but this is clearly something that should have required a warrant, not a subpoena.

i think it is questionable whether records of WHO you called or text messaged should require a warrant (it certainly does in my state), but clearly the CONTENT of the messages is about as clear a privacy concern as you could have
11.30.2007 11:47pm
OrinKerr:
whit,

The difficulty is that the Fourth Amendment isn't a general protector of privacy, so merely saying that something seems really private to you doesn't mean the Fourth Amendment requires a warrant for the government to access it. Consider what the Supreme Court said about the Fouth Amendment in Katz v. United States:
The Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy -- his right to be let alone by other people -- is, like the protection of his property and of his very life, left largely to the law of the individual States.
Of course, you can disagree as a normative matter, but that's the approach the U.S. Supreme Court has taken.
12.1.2007 12:11am
Brian G (mail) (www):
I agree a warrant shoyuld be required. What always surprises me is that getting a warrant is so easy, I can't believe that everyone involved was too lazy to get one.

When I did some prosecution work before going all civil, when I was asked to get a warrant I knew what judge to get it from dcepending on what I was asking for. Usually, it took my longer preparing the warrant thatn it did to chase down a judge to get it signed.
12.1.2007 12:58am
one of many:
But under Smith couldn't MCI/Skytel properly be considered a party to the pager communications? The analogy would be not to phone numbers and switchboard operators but instead to an answering service. Pagers seem to function more like an answering service than a traditional telephone service. Wouldn't Payner be the operational case? In this line of reasoning the REoP is limited to that which already has a 3rd party involved.


Additionally hasn't it already been well established that if a(n improper) search is conducted upon a 3rd party then the defendant's right to privacy has not been violated (Payner comes to mind right away)? Privacy attaches to persons not to things, so a search of MCI/Skytel's records cannot violate McCreary's privacy, only MCI/Sktel's. A court could just restate this and rule that McCreary's claim that his privacy was violated to not exist. Which brings us back to the answering service analog being beter than than the phone operator analog, the communication is entrusted to a 3rd party (MCI/Skytel) to pass on to the recipient instead of being directly conveyed between the 2 parties.
12.1.2007 1:09am
David Walser:
Suppose the prosecution should have obtained a warrant, what's the proper remedy in this case? Assume the prosecution had probable cause and could have obtained a warrant but honestly thought a subpoena was the proper vehicle for obtaining the evidence. (I know that many of you might be unwilling to make that assumption in real life, but for the sake of this discussion, I hope that you will.)
12.1.2007 2:15am
michael (mail) (www):
I think 'one of many' has the better of the argument. To expand it further, does the Fourth Amendment prohibit the use of informants. After all information has (allegedly) been imparted to them that was not supposed to be passed along. If so, the government has a lot of apologizing to do. The keeper of the boarding house where John Wilkes Booth stayed was hung. She should have had the defense that she was observing his inalienable Fourth Amendment Rights, similarly to one of those
convicted in relation to the Oklahoma City bombing.
12.1.2007 4:39am
Warmongering Lunatic:
Hmm. What's the rule for seizing voyeur-made recordings as evidence? (asks the non-lawyer)
12.1.2007 5:20am
MR (mail) (www):
I found it interesting that you considered this a "cut-through" digits type of argument, and only reached the email issue later. I was a heavy user of skytel pagers until the late 1990's, and I considered them email first - especially where you can send the messages via website or email. Indeed, all text messages are really just of form of email - they were originally called "SMS" or short message service for a reason. Wikipedia (for what it's worth) details how SMS is handled as a "store and forward" service, no different than SMTP. SMS

While I have no idea how the email analysis comes out (though I lean toward no reasonable expectation of privacy assuming -as you point out - the agreement says that the service will comply with subpoenas). Thus, I think likening these pagers to phone and not to email is the wrong place to start.

Second, once you view these as email, as to the Stored Communications Act, doesn't a statutory framework that allows for a particular way of obtaining third party information have some bearing on reasonable expectations? In other words, if the SCA overrides any Terms of Use Agreement to allow for production of evidence if certain statutory hoops are jumped, then anyone who sends a message subject to the SCA knows exactly what rights will and will not protect that evidence. I realize the same argument may not hold true for, say, a locked hotel room, but here when you send a message you are entrusting someone else to hold the information, and if a statute came along that said that the holder had to report all information under certain conditions (e.g. $10K cash transactions), then there would be no expectation that the information would be kept secret.

Anyway, that's my .02 from a technical point of view.
12.1.2007 7:37am
SHG (www):
Ah, the quaint old days when pagers were all the rage for illicit communications. Of course, the problem continues with new tech as well.

You present a very interesting issue, which really needs resolution for practical purposes. But perhaps you're overthinking it when you try to discern a "correct" answer.

My personal preference is that the maintenance of records by the transmitter of communications, whether numbers, words or whatever comes along next, be held to require a warrant primarily because it is intended by sender and receiver to be private, and only becomes available because of unintended or unknown technological trends. Plus, warrants make it a little harder for the government and give me something to challenge.

This isn't doctrinal-based, but practical. Regardless, as long as there's a clear answer, people will know how to conduct themselves. Whether we drive on the right or left doesn't matter, as long as we all drive on the same side. If the answer is that a subpoena will do, then we can all stop sending messages that are private via non-private means. And if we continue, then we know the risks.

And if people get fed up enough with the lack of privacy in their lives, they will do something to shut the government's intrusiveness down.
12.1.2007 8:03am
NatSecLawGuy:
This sounds like a ripe Criminal Procedure exam question. As I am in the unfortunate position of taking one in two weeks, lets hope my Prof. read this and got the same idea.
12.1.2007 9:56am
Brett Bellmore:
I'm with Whit; The fact that this would be considered a difficult question is an indication of the bad place our 4th amendment jurisprudence has gotten us to. Private electronic communications are today's "papers"; Accessing them should always require a warrant.
12.1.2007 10:03am
Lior:
(IANAL) 1


Does the fact that the government chose to ask for a subpeona rather than a search warrant change the standard for issuance? That cannot be right. For example, if I stay in a hotel can the government require the hotel to produce "all papers present in room 305"? Can they insist UPS (or the USPS) produce letters that are in transit and addressed to me?


Allowing them to subpeona email backups made by the infrastructure is very odd. Can my landlord be required to produce my mail? After all this mail is beling delivered on his property and he has keys to everything.


There is a difference between backups made by the infrastructure (sender's ISP/MTAs along the way/recipient's ISP) and backups made by the recipient: if it's my work account, then the mail actually belongs to my employer and his backups can persumably be subpeona'd.
12.1.2007 10:56am
Lior:
(IANAL) 2


Reading the Prof. Kerr's post I get the impression that since in many cases the criminal defendant who is invoking constitutional protections is pretty clearly guilty, the court really wants to find a way to read the constitution against him. What a rule like "4th amendment doesn't apply if you obtain the car by fraud" seems to stand for is "the government would have normally needed a warrant to search your car, but it has since been that determined you are a criminal, so we will retroactively say they didn't need a warrant after all". In other words, the search uncovering evidence you were a bad guy retroactively cures any failings in its authorization. A more charitable reading would be that if the police knowsbelieves you obtained the car by fraud, they don't need a warrant. But that would completely obviate the need for warrants.
12.1.2007 11:41am
JosephSlater (mail):
Me &BFF r rbbing bnk. BRB!
12.1.2007 12:07pm
carpundit (www):
Lior,

Courts determine probable cause on the basis of what was known before the search, not what was learned from it. And, BTW, if the police have probable cause, they don't need a warrant for your car anyway.

CP
12.1.2007 1:08pm
Libertarian1 (mail):
I think this case is illustrative as to why we Libertarians are not more politically successful. We have a case of defendants in a series of bank robberies whose defense is you esoterically violated my constitutional rights. We support that defense not because they are innocent but because if we defend their rights, than the government won't be able to violate your rights in the future. The public thinks since I don't rob banks why should we let the guilty walk. That inevitably leads to "boy those Libertarians are weird".
12.1.2007 1:13pm
Anon Y. Mous:
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.


Do I need a warrant to find out what what the third method was? :)
12.1.2007 1:34pm
abu hamza:
maybe pay phones will come back into vogue now that the government can just subpoena our cell phone records and even the content of the cell phone text messages.

I want to let the President know how poorly I think of him. So the fastest way to assure he gets the message is to call my friend in London, cuz the gov't can just listen in w/o a warrant.

Orin Kerr is obviously a search expert, but I still believe to him the high-fallutin' doctrines are all just words on paper and he does not understand just how invasive it is to, e.g., be "stopped and frisked" or, now, to have our text messages so easily read by the government.
12.1.2007 1:54pm
Laura S.:

At the oral argument, the argument focused in part on (a) the role of the Stored Communications Act, and (b) the role of Skytel's billing practices. In my view, the Stored Communications Act is just irrelevant.


Orin, doesn't your argument actually suggest that parts of the Stored Communications Act are unconstitutional? Particularly in that the SCA authorizes provider disclosure to law enforcement when the communications "appear to pertain to the commission of a crime;"?
12.1.2007 1:59pm
one of many:
Lior:


if I stay in a hotel can the government require the hotel to produce "all papers present in room 305"?


Potentially no (in most cases yes), although a better example would be a leased office in an office building (the expectation of privacy in a hotel is very small with maids and all that, and hotel owner retains far more control over rooms than an office building owner does), where a search demand should be adressed to the leaseholder instead of the building owner. Regardless, a pager message is better considered as valuables left at the front desk of the hotel for safekeeping, in which case the government can request the hotel turn over "all papers left at the front desk by the occupant of room 305".


Can they insist UPS (or the USPS) produce letters that are in transit and addressed to me?

Yes actually they can. With regards to UPS they can in fact even open the letters, although the USPS has statuatory protections before the government could open the letters not availible to UPS.


Just a clarification of what the issues are, not a rebutal of your arguments. I'm not all that positive about my argument (analogizing to an answering service) being the best one - I feel it is a correct one and should be considered but Prof. Kerr's pager service as conduit of communications position is equally correct and I would raise it if Prof. Kerr had presented my arguement.

Now for the rebuttal.
The question is not about where to issue the request (it can be where ever the information is), but the level of privacy of information in the possesion of a 3rd person and the corresponding level of protection before government action is permitted. The dependant secondary question is when and to what degree are a first party's privacy rights infringed when a 3rd party is served with a request for communications in the 3rd party's possesion.
12.1.2007 2:02pm
Dave Hardy (mail) (www):
I want to let the President know how poorly I think of him. So the fastest way to assure he gets the message is to call my friend in London, cuz the gov't can just listen in w/o a warrant.

Once knew a guy who worked in the White House, back in the 80s, when the Peacekeeper MX missile was a big issue. They were sure the Soviets had all lines tapped. So sometimes while working late at night they'd make a call like this:

"Peacekeeper MX"

(wait a few seconds)

"Lord, Ivan, you must have really pissed somebody off. You're sitting at a desk listening to these phone calls at 1 AM. ...."
12.1.2007 2:09pm
whit:
"The difficulty is that the Fourth Amendment isn't a general protector of privacy"

actually, that's a good point, and one i am aware of. my state constitution specifically protects a right to privacy. the constitution does not, all political rhetoric aside (see: supreme court justice testimony before congress...). it does protect against unreasonable search and seizure, bla bla. the point is that getting the contents of a private text message w.o a warrant is no different than opening somebody's mail w/o a warrant, or listening in to phone conversations w/o a warrant. the only real substantive difference is the technology.

and it's clear from precedent that we don't (in domestic investigations at least) phone tap w/o a warrant, or open people's mail w/o a warrant because of the 4th. text messages are the same.
12.1.2007 2:14pm
whit:
"And, BTW, if the police have probable cause, they don't need a warrant for your car anyway. "

depends on the state. under the federal standard, that is correct (i believe it's called the carroll doctrine, but it's been a while...). in hawaii, cops need a warrant or consent for a car search... in WA we also can't search a car based on probable cause... we can search based on search incident to arrest, which IS different.

there have been numerous situations where i had PC to search a vehicle (in WA state). i could not search w/o a warrant or consent. just clarifying that federal standards are looser (and in some cases much looser) than state standards when it comes to such things based on that whole independent reading of state constitutional rights, in addition to federal ones.
12.1.2007 2:16pm
D K Warren (mail):
Even a victory for the defense will have limited application in the future where the recipient of the message is also a co-conspirator.

In cases like this, if for whatever reason the subpoena or warrant are insufficient and suppression is found to be the remedy (or if the government relied on some exception for a warrantless search & lost the argument in court), all it has to do is squeeze a co-defendant & get them to waive their expectation of privacy in the conversation.

All that legal maneuvering on behalf of the primary defendant is out the window if their partner (i.e. - the recipient of the message) turns into a snitch for the government to try & save their own posterior.

See the analysis in U.S. v Jones, 149 Fed.Appx.954, 959-60 (11 Cir. 2005):

The government elicited testimony from McCalebb [a co-defendant who pled guilty & testified for the prosecution in Jones' trial] concerning text messages that he sent or received through his pager. Because the defendants did not have a reasonable expectation of privacy in the text messages received or sent by McCalebb, the district court correctly permitted McCalebb to testify regarding the content of those messages.

The defendants also erroneously argue that the earlier ruling of the district court suppressing the text messages is law of the case and precludes the later decision to permit McCalebb to testify. Whether McCalebb could testify regarding text messages that he sent and received was a separate issue from whether the government was entitled to use text messages it obtained without a warrant, and the earlier ruling was not law of the case for that issue. McCalebb's testimony did not violate the Fourth Amendment and suppression was not warranted.


Technology & the law may not be your biggest or only hurdle - the loose lips of a partner in crime can circumvent both.
12.1.2007 3:56pm
LawCommenter (mail):
Two Points:

1. There is an important but little-noted distinction between the reasoning in Smith v. Maryland and that of United States v. Miller. In Smith, NO SUBPOENA WAS ISSUED. Rather, the phone company complied voluntarily with the police. Thus, the disclosure of the numbers was not "compelled" in the same way it was compelled in Miller.

2. The Ninth Circuit could, as the government suggests, approach the issue as a question of standing. That is, they could decide that once the text message was saved on MCI's computers, it became merely a business record of MCI---a record which the defendant has no standing to cite as a basis for his Fourth Amendment argument.

Because this approach to privacy would contradict most people's basic notions of reasonableness, an expanded notion of standing witih respect to information held by third parties is probably necessary. One option would be to introduce a concept of "privity" of informoation; that is, a notion of standing allowing third parties to assert their privacy interests in information even when the information is "held" by others. In other words, something similar to the contract law notion of privity that says third parties can sue on the basis of a contract so long as they are a legitimate party to it. See, Securing Informationships, Recognizing a Right to Privity in Fourth Amendment Jurisprudence, 115 Yale L. J. 1086 (2006).
12.1.2007 4:26pm
Dave N (mail):
A question that crossed my mind is that since the law is unsettled, couldn't the government claim it was acting in good faith in securing the records via subpoena, even if the court rules that in the future the government is required to get a warrent?
12.1.2007 6:29pm
whit:
"the loose lips of a partner in crime can circumvent both."

as it should be. you don't have the right not to be ratted out (they left that out of the constitution).

if you make communications about a crime to another, and he wants to turn you in, that falls under the legal precedent of "tough beans d00d"
12.1.2007 6:36pm
Mary Katherine Day-Petrano (mail):
Things are getting so Orwellian these days. What's next?

"as it should be. you don't have the right not to be ratted out (they left that out of the constitution).

if you make communications about a crime to another, and he wants to turn you in, that falls under the legal precedent of 'tough beans d00d'"

[Remainder of post deleted by OK. Mary, I realize you are very deeply concerned about the law clerk / HLS counterterrorism issues you mention, as you have written very long comments about them several times. At the same time, they don't seem related to the comment threads to which you attach them.]
12.2.2007 4:21am
Mary Katherine Day-Petrano (mail):
"and it's clear from precedent that we don't (in domestic investigations at least) phone tap w/o a warrant, or open people's mail w/o a warrant because of the 4th...."

No?

You have to just LOVE the McDade Amendment in the context of Florida. Federal Prosecutors, State Ethics Regulation, and the McDade Amendment, 113 HARV. L. REV. 2080, 2089 (2000)(noting specifically states such as Oregon and Florida that have adopted a no-contact rule, that bars contact between law enforcement agents and suspects, and the resulting impediment on the federal prosecutorial power to use cooperating witnesses, wiretaps and undercover agents).
12.2.2007 5:02am
loki13 (mail):
IM IN UR PAGERZ, VILATIN UR RITEZ.

...since I'm supposedly studying, I have nothing more substantive to add. The quick gloss I have is that I think (legally) Orin has made a legally compelling argument, but normatively, the whole realm of 4th Am. jurisprudence hasn't made much sense given the march of advancing technology. The various attempts of the S.Ct. (Katz, Maryland, Ciraolo, Kyllo, etc.) to keep abreast of technological changes (SEP + (OREP + general public use / routine)) is looking rickety.
12.2.2007 10:17am
martinned (mail) (www):
L.S.,

US Constitutional law on the rights of suspects in criminal investigations and trials is fascinating, generally. Even though many apparently object to it, it is interesting to consider the different developments in diffent jurisdictions. While in the US, first amendment law gives much more rights to the individual than the ECHR, the latter is much more strict when it comes to the rights of criminal suspects. I don't think the Court in Strasbourg has dealt with the problem of this post, yet, but in this thread a few "self-evident" limitations on the privacy expectation of criminal suspects have already been mentioned that turn out to be less self-evident on this side of the Atlantic. (The use of prison informants, especially when deliberately planted for the purpose, is generally not OK, the law on entrapment is much more strict as to what the police can do, etc.)

Describing these different traditions as conservative vs. liberal is not an explanation, just a label. And not all of the differences fit nicely in this dichotomy.

P.S. I just, against my better judgement, checked the database of the ECHR in Strasbourg, and it turns out there is some case law on this issue. A violation of art. 8 (right to privacy) was found in the case Taylor-Sabori v. UK, 22 October 2002, when the UK policy intercepted pager messages without a warrant. The exact level of suspicion that would have been necessary in order to get such a warrant, though, is not discussed, and presumably this would have been a matter for UK law anyway. (Within the limits proscribed by the Convention.)
12.2.2007 10:58am
martinned (mail) (www):
P.S. This a link to the Taylor-Sabori case on Bailii, which is a little easier to link to than the ECHR database.


CASE OF TAYLOR-SABORI v. THE UNITED KINGDOM

(Application no. 47114/99)

JUDGMENT

STRASBOURG

22 October 2002
12.2.2007 5:57pm
michael (mail) (www):
In my limited understanding, the Fourth Amendment exists in reference to two historical circumstances. The first, that a citizen of England had papers taken from his residence by the King's agents, and it appeared the citizen disagreed with the divine right of the King, thus was treasonous and executed. The second, that prior to the American Revolution, the British admiralty and agents had been intrusive re: the papers of shippers because of the admiralty's concern about smuggling and duties not paid. In the latter case, I assume that part of the problem was, as Darrell Royal said about ants at a picnic, 'it was not so much what they eat, as the mess they cause.' It might be nice if rulings applying the Fourth Amendment would seem to be limited by circumstances reflecting its origin.
12.3.2007 1:41am
Another Kevin (mail):
"Reasonable expectation of privacy" is, as several here have noted, rather a slippery standard. Perhaps next year, a Court will decide that, given our technological abilities to eavesdrop, no reasonable individual would expect privacy in any venue nor any medium of communication. That would be a bright-line rule for Fourth Amendment jurisprudence: if all searches are reasonable, a Court has nothing to decide. The pesky clause about warrants' issuance could be reasoned away as referring to seizure warrants.

Or perhaps the right of security in persons, papers and effects is another right of the People in collective. Maybe the Federal Government needs a warrant only to search the property of the government of a State.

Truly, our Constitutional jurisprudence is so tortured, that nothing would surprise me.
12.3.2007 9:28am
Duffy Pratt (mail):
Another Kevin:

When no-one has a reasonable expectation of privacy in anything anymore, the result you fear will (and should) be the right result. Basically, a similar thing has already happened with the reach of the commerce clause. Now, virtually everything is in interstate commerce. Why is this a problem? Or I should ask, isn't the problem one having to do with the structure of society, and not of constitutional interpretation?
12.3.2007 11:15am