Cecily Zamora
Text messages are increasingly being used as evidence in court cases, ranging from family law matters to criminal trials. This has brought into question the privacy of text messages and whether it is legal to read someone else's messages. While there is a legitimate expectation of privacy when it comes to text messages, there is a search incident to arrest doctrine that allows law enforcement to browse text messages during an otherwise lawful arrest without violating constitutional protections. Additionally, in some cases, text messages may be accessed due to a third-party error, such as an account being shared or a phone being left unlocked, raising questions about the legality of reading another person's messages in such situations.
| Characteristics | Values |
|---|---|
| Privacy | Text messages are considered private and confidential. However, they can be accessed by law enforcement with a warrant or court order. |
| Legal use | Text messages can be used as evidence in court cases, including criminal trials, family law matters, and personal injury lawsuits. |
| Liability | Reading someone else's text messages without permission may result in civil or criminal liability, depending on the jurisdiction and the method of obtaining the messages. |
| Consent | It is generally illegal to read someone else's text messages without their consent. However, there are exceptions, such as in the case of a lawful arrest. |
| Third-party access | Third-party errors that provide access to private text messages may result in civil liability but are unlikely to lead to criminal charges. |
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What You'll Learn
Text messages as evidence in court
Text messages can be used as evidence in court, and they can be instrumental in the outcome of both criminal and civil cases. Text messages can be used to prove wrongdoing or support a defence position in a wide variety of court cases, ranging from family law matters like divorce and child custody to personal injury lawsuits and criminal trials. Text messages are essentially a recorded conversation or a written expression of intent, and they can be used to show a person's motive, intent to commit an alleged crime, or state of mind ahead of time.
Text messages must be authenticated to be admitted as evidence in court. This means that an attorney must prove that a text message was written and sent by the person in question. This can be done by providing circumstantial evidence that the phone from which the text was retrieved belonged to the person who sent the message. The defendant's name on a text message is not enough to prove authorship without some "confirming circumstances" that demonstrate authorship. Confirming circumstances could include electronic timestamps, the contact information of the sender, and identifying information that links the message to the texter.
There are several ways to obtain text messages to be used as evidence in court. If a person does not voluntarily provide their phone, an attorney can obtain a court order or subpoena to gain access to relevant messages. Even if the owner of the phone has deleted certain messages, those texts can still be accessed from the phone of the person who received them, or from records kept by cellular service providers for a certain period of time.
Text messages have been used as evidence in several high-profile cases, including the Amber Heard-Johnny Depp defamation trial, the Michelle Carter "texting suicide" trial, and the Anthony Weiner sexting trial. Text messages can also be used as evidence in congressional hearings, as demonstrated by the Jan. 6 hearings, where text messages were obtained relating to top White House officials' actions in the weeks leading up to the 2021 attack on the Capitol.
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Police access to text messages
Police officers can access text messages in several ways. Text messages and phone calls can be intercepted by police using an 'IMSI catcher', a device that tracks all mobile phones connected to a network in a specific area. Police can also access text messages through a legal process targeting a person's service provider. Similar legal processes can be used to request data from companies that host text messages, such as Facebook.
In the US, police officers do not need a warrant to obtain records of who an individual called and when, as a 1979 Supreme Court case found that call logs are considered business records and are not protected by the Fourth Amendment. To obtain this information, officers present a subpoena from the court to the phone owner's cellular provider. If the phone is not part of a criminal investigation, officials can obtain a general administrative subpoena, which does not require judicial approval. Text messages are treated like emails, according to the ECPA. The ECPA allows police to access emails stored in the cloud that are at least 180 days old, including drafts, documents, and photos.
In the UK, the Police and Criminal Evidence Act 1984 (PACE) gives the police broad-ranging powers to confiscate mobile phones where they have reasonable grounds to believe that the phone or its contents are "relevant evidence in connection with a criminal investigation". Police forces are allowed to retain an individual's phone for as long as they need to conduct their investigations, and they have no duty to inform the individual of when they might expect it back. The police may also retain any information found on a mobile phone if they believe it could be used in future criminal investigations.
Police officers can also access text messages stored on a phone through a 'mobile phone extraction' device, which can be connected to a phone to download all the data stored on it. Such access may also be possible with device hacking, which may not require physical access to the phone. To remotely access an individual's phone (also known as 'tapping'), police must generally obtain a warrant from the court. However, there are exceptions to these strict privacy rules in suspected child sexual offence or terrorism cases.
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Privacy rights
In some cases, individuals may accidentally gain access to someone else's text messages due to errors or glitches, as highlighted in a scenario involving Apple devices and iCloud. In such situations, legal experts advise on the potential liability, civil or criminal, arising from accessing and sharing private information without consent. While simply reading accidentally received messages may not constitute an illegal act, any resulting harm or damage to the affected individual could provide grounds for a civil lawsuit.
It is important to note that privacy rights extend beyond the initial receipt of information. Even if someone gains access to another person's text messages, intentionally or unintentionally, they are not legally permitted to share that information without consent. The sharing of private information without consent can violate privacy rights and may lead to legal consequences, including civil lawsuits.
Additionally, the expectation of privacy is crucial in determining privacy rights. If individuals knowingly share accounts or passwords, there may be an implied consent to access each other's information, reducing the expectation of privacy. However, this does not grant permission for unauthorized sharing or misuse of the accessed information.
To protect privacy rights, individuals should be cautious about their personal information and communicate any concerns to the relevant parties, such as the involved individuals or the service providers responsible for any errors. Understanding privacy rights and the legal implications of violating them is essential to making informed decisions and respecting the privacy of others.
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Civil lawsuits
Text messages can be used as evidence in court and can be instrumental in the outcome of both criminal and civil cases. Text messages can be used to prove wrongdoing or support a defence position in a wide variety of court cases, ranging from family law matters like divorce and child custody to personal injury lawsuits.
In civil lawsuits, text messages are often produced and used as evidence. If you sue someone, you can gain access to their text messages, but there are several caveats. Both sides of the suit can conduct "'discovery'" to access information and documents relevant to the case. However, the responding party can object to a request if it is overly broad or burdensome. Therefore, the requested information must be relevant to the case and likely to lead to the discovery of other relevant information.
To obtain text messages as evidence, an attorney must obtain a court order or subpoena. Text messages must be legally obtained and properly preserved as evidence, or a court won't accept them as authentic. They must be presented with information proving their relevance, such as the phone number that sent the messages. If a person does not voluntarily provide their phone, a court order can be obtained to access the relevant messages. Text messages can also be retrieved from the receiver's phone or the sender's phone service provider for a limited time.
It is important to note that text messages may have potential drawbacks as evidence in court. They can be misleading or altered, and the meaning behind a text message can sometimes be lost in translation. Additionally, there may be concerns about the authenticity and reliability of the messages. For text messages to be admissible, they must be authenticated, and in some cases, they may need to qualify as an approved hearsay exception.
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Criminal charges
In the United States, accessing someone else's private communications without authorization is typically illegal. This includes reading another person's text messages or emails. Both federal and state laws address this issue. For example, the Electronic Communications Privacy Act (ECPA) at the federal level and Michigan Penal Code §750.540 prohibit unauthorized access to electronic communications.
The legality of reading someone else's text messages depends on the specific circumstances and the jurisdiction in which the incident occurred. If an individual accesses another person's messages without their consent, it can be considered a violation of privacy laws. The intent behind accessing the messages is also significant. Actions that are willful and malicious, meaning done intentionally and with ill intent, are more likely to be considered criminal.
In one case, a husband accessed his estranged wife's email account, printed out an email, and gave it to his wife's first husband, who was involved in a custody battle with her. The Michigan Court of Appeals determined that the husband could be charged criminally for accessing his wife's computer. The willful and malicious, unauthorized use of someone else's electronic messages or cell phone is a felony punishable by up to two years in prison, five years of probation, and substantial fines.
However, it's important to note that simply reading messages that were accidentally sent to you or made accessible due to an error is unlikely to result in criminal charges. In such cases, the individual who accessed the messages may not have done anything illegal under the law to obtain them, and their liability, either civilly or criminally, depends on the specific circumstances. If you believe your private messages have been accessed without your consent, you can go to the police and file a report, but they may consider it a civil matter. In that case, you would need to file a civil lawsuit to seek damages.
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Frequently asked questions
It is illegal to access private text messages without permission, even if the account was left logged in or it was a third-party error. However, law enforcement can access text messages with a warrant from a judge or magistrate.
Yes, text messages can be used as evidence in court cases, including criminal trials and family law matters. Text messages can be used to prove wrongdoing or support a defence.
If someone's text messages appear on your phone without your intentional doing, you may not be liable civilly or criminally. However, reading and sharing the information found may be illegal.
No, it is illegal to access someone's text messages, even if they give you their password.
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