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The "reasonable expectation of privacy" is critically important to the interpretation of the 4th Amendment in criminal controversies. Reasonable people, like it or not, do expect that their text messages are private.

It's a rather self-defeating view of the 4th Amendment that suggests that, because the government could easily gain access to a piece of data, that data must therefore not be private. The government can easily get access to most data.

It's a rather self-defeating view of the 4th Amendment that suggests that, because the government could easily gain access to a piece of data, that data must therefore not be private. The government can easily get access to most data.

Good thing I never said that then!

I said we shouldn't write laws that defy physics. Judges should not write laws that say people hold their phones on their persons at all times when we know that not to be the case. Judges should not write laws that text messages are to be considered private when all of us know that the next person we hand our phone to can trivially (without government equipment) read our messages.

The next person you hand your diary to can read your diary. What's your point?

Your example: the next person we hand our phone to. Describes deliberate, consensual, sharing with intent etc. This is weak. And beside the point. Its irrelevant. Also: (1) Telecommunications networks are closed networks. They are not "broadcast media". On mobile, they are encrypted. That's why there are warrants required. There is an inbuilt expectation of privacy. SMS transmit in the header information of private lines. This isn't really a debating point. (2) Judges should not write laws... They don't. Democratically eleceted legislators pass laws, that are signed by a similarly elected executive. Subject to constraints of the constitution, and judicial review &tc.

Judges do not write laws.

>If some people expect text messages to be kept private, they are wrong. Their expectation doesn't change reality.

Let's try it this way: If some people expect phone calls to be kept private, they are wrong. Their expectation doesn't change reality.

The presence of surveillance doesn't negate the expectation of privacy.

>In this case the phone was not being kept on the person, and yet the judge writes that phones are expected to be kept on the person contra reality.

So when you put your phone in the bin to go through a metal detector, your phone records, text messages, email accounts, Dropbox account, social media accounts, and anything else accessible from your smartphone is fair game for the state?

No.

If some people expect phone calls to be kept private, they are wrong. Their expectation doesn't change reality.

The phone call itself is private. GSM Cell phone calls are encrypted (is that still unbroken for most people??) Recording is governed by laws that specify for each state how private it is. The police need to get warrants to record.

So when you put your phone in the bin to go through a metal detector, your phone records, text messages, email accounts, Dropbox account, social media accounts, and anything else accessible from your smartphone is fair game for the state?

I am looking at the bin, and I will not let anyone pick up the phone. A cop seeing a phone on a coffee table blinking away with a message on the face of it seems very different to me than what you have described. (I am speculating about several aspects of that vis a vis the actual case.)

Traditional landline calls are not encrypted. Do they not get the same expectation of privacy?

What if you are using a landline with a 90s style cordless phone? No encryption there, those things just spewed analog RF like baby monitors and cordless microphones. You can easily pick up those signals from the street; even further if you want to get slightly fancy with your antenna.

For a time it was legal to intercept those cordless phone conversations, since they were being broadcast over public airwaves. I forget if the legislature changed that before the industry moved their tech away from that kind of infrastructure.

I fully agree that "because someone else can read it, it's not private" is a bad argument.

If the suspect had a screen lock, would that create a reasonable expectation of privacy?

Would you have a problem with an officer opening a suspect's mail at the scene of an incident? Ripping paper is just as little effort as hitting buttons on a phone.

De facto privacy is very different from this legal concept of "expectation of privacy". Obviously a man with a gun can violate your de facto privacy easily. The question is, what boundary are you going to put on the legitimacy of that activity?

We don't require warrants to violate your de facto privacy - we require them to violate your legal expectation of privacy.

If the suspect had a screen lock, would that create a reasonable expectation of privacy?

Yes, I think so. If the message was just displayed there, and the phone is not in the person's pocket, I don't see any more privacy for that than a post-it note on a refrigerator.

Re: the envelope, if the cop is pressing buttons to access an unlocked phone, as I said, I think that's problematical without a warrant.

We don't require warrants to violate your de facto privacy - we require them to violate your legal expectation of privacy.

But I am not sure we should require warrants to protect privacy that doesn't actually exist in any manner in normal de facto space.

One reason I definitely want to see Android n+1 have multiple user accounts is because of the terror that strikes in all of our hearts when we hand our phones to a friend to borrow.

The officer discovered the phone in a room in the apartment he had not been invited to. The officer had, at the time, no evidence of wrongdoing by the boy's caretakers. The officer claimed the phone "beeped", whereupon he picked it up, opened it, clicked past an error message about a past-due bill, and then scrolled through the message history on the phone.

I think the idea behind this particular ruling was setting a precident of "it's not okay to do this", so that later on when a police officer or whatever does use this information in an improper way, it is clear that, sorry, this isn't allowed. Remember, the law is a big stick, not a fine-tuned scalpel, and you have to use it/decree upon it as such.

IANAL