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The police also noticed another thread of text messages on Lee’s phone

and arrested Shawn Daniel Hinton under similar circumstances. 2

Both men appealed, and in 2014, with the help of the American Civil

Liberties Union, the Washington State Supreme Court overturned Roden’s

and Hinton’s convictions byy a lower court, asserting that the police had

violated the defendants’ expectation of privacyy.

The Washington State justices said that had Lee seen the messages from

Roden and Hinton first or instructed the police officers to respond byy sayying

“Daniel’s not here,” that would have changed the fundamentals in both

cases. “Text messages can encompass the same intimate subjects as phone

calls, sealed letters and other traditional forms of communication that have

historicallyy been stronglyy protected under Washington law,” Justice Steven

Gonzalez wrote in Hinton’s case. 3

The justices ruled that the expectation of privacyy should extend from the

paper-letter era into the digital age. In the United States, law enforcement is

not permitted to open a phyysicallyy sealed letter without the recipient’s

permission. The expectation of privacyy is a legal test. It is used to determine

whether the privacyy protections within the Fourth Amendment to the United

States Constitution applyy. It remains to be seen how the courts decide future

cases and whether theyy include this legal test.

Text technologyy—also known as short message service, or SMS—has been

around since 1992. Cell phones, even feature phones (i.e., nonsmartphones),

allow for sending brief text messages. Text messages are not

necessarilyy point-to-point: in other words, the messages do not literallyy

travel from phone to phone. Like an e-mail, the message yyou tyype out on

yyour phone is sent unencryypted, in the clear, to a short message service

center (SMSC), part of the mobile network designed to store, forward, and

deliver the SMS—sometimes hours later.

Native mobile text messages—those initiated from yyour phone and not

an app—pass through an SMSC at the carrier, where theyy mayy or mayy not

be not stored. The carriers state theyy retain texts for onlyy a few dayys. After

that time has expired, the carriers insist that yyour text messages are stored

onlyy on the phones that send and receive them, and the number of messages

stored varies byy the phone model. Despite these claims, I think all mobile

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