In State v. Johnson, 2012 Mont. Dist. LEXIS 39 (Mont. Dist. Ct. 2012), a Montana federal district court held that individuals have a reasonable expectation of privacy in their incoming and outgoing text message communications.
The case involved an alleged rape that was reported by the victim earlier in the year. While the defendant admitted to having sexual intercourse with the victim, he maintained it was consensual.
The victim voluntarily turned over her cell phone to law enforcement upon request. About 29,000 messages were retrieved. A discovery dispute arose when the defendant requested for all the text messages and the State sought to redact some of the messages.
In making its decision, the court recognized that it must balance the victim’s right to privacy with the defendant’s right to exculpatory information. The court discussed how the specific issue of the discoverability of text messages has been addressed in other jurisdictions.
The Washington Court of Appeals earlier last year held that the constitution does not provide protection for text messages once the intended recipient receives them. State v. Hinton, 2012 Wash. App. LEXIS 1510 (Wash. Ct. App. 2012). In an attempt to distinguish this case from Hinton, the court focused on whether there is an expectation of privacy in sent and received text messages that are stored on the phone, instead of Hinton’s focus on the absence of privacy interest once text messages are sent.
The court also discussed State v. Patino, P1-10-1155A (R.I. Super. Ct. 2012), a Rhode Island case, where the trial court held that the defendant had a protected expectation of privacy in the text messages that were saved on his girlfriend’s cell phone.
The Patino and Hinton decisions arguably represent two different approaches to the issue of privacy interest in text messages. Rather than explicitly parting ways with the Hinton decision (which in practical effect, the court does), it settles for an ill-defined distinction between this case and Hinton.
Mirroring the approach taken in Patino, the court noted that the victim did not waive her privacy rights or the privacy rights of the individuals with whom she communicated by voluntarily turning in her phone to law enforcement.
After an in camera review, the court ruled that none of the redacted messages contained exculpatory material; thus, the privacy rights in the content of the communications of the both the victim and the individuals with who she communicated warranted protection.