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SJC-12919, Commonwealth (indistinct) L. Delgado-Rivera
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Mr. Charles.
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Thank you.
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Good morning, your Honors?
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Assistant District Attorney,
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Jamie Michael Charles from Middlesex,
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on behalf of the Commonwealth.
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As this court has held,
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Fourth Amendment rights are personal
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and cannot be vicariously asserted.
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This is a case that can be resolved
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through traditional standing principles,
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which adequately protect this defendant's privacy concerns.
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I think it's important to remember at the outset
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that we're not talking about as Riley put it,
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the vast quantities of digital information
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that revealed the privacies of life
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that might be implicated by a search
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of this defendant's phone or his provider records.
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Rather, here the defendant's purported interest
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is a tiny sliver of information
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that resides on Mr. (indistinct) phone.
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A single conversation that the defendant engaged in,
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or even a single text that then defendant sent,
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knowing that a digital copy would reside
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on the recipient's phone.
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And I want to be clear, the Commonwealth is not questioning
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a defendant standing to challenge a search
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of his own digital device
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or the data that he has stored with a service provider.
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But this is not the surreptitious interception
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of a real time voice or digital conversation.
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It's not the surreptitious interception
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of real-time location data.
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It's not the seizure of a digital device
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and all the intimacies of the other person's (indistinct)
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Mr. Charles?
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Yes
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I think what the defendants might be arguing here,
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is if you take Commonwealth versus (indistinct)
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which obviously dealt with the defendant's own phone
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and you take the reasoning
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in the Washington State Supreme court case in Hinton
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that we have here is,
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a subjective and an objective expectation of privacy
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just in the nature of text messages.
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Just to be clear, before I dive into that,
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no courts, state or federal,
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I recognize we're talking about Article 14 here,
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although as an aside,
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I don't believe it was litigated below,
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but there's quite possibly a choice of law issue here
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involving whether you apply Texas or Mass law.
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But putting that aside,
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no courts, state or federal has ever found standing
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in these circumstances under the Fourth Amendment
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and even state the Hinton,
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which founded under its state constitution
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did so in a split decision
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that relied on a constitutional provision
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that does not apply a reasonable expectation
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of privacy analysis.
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It applies a more rigorous analysis.
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I tried to give an example in my brief, for example,
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in Washington, warrantless trash pulls
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are unconstitutional under the corresponding
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state privacy provision.
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Whereas they're clearly not in Massachusetts
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same thing with bank records,
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which in Massachusetts can be obtained via subpoena.
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You need a warrant in Washington
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to obtain any form of bank.
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So, just to be clear, State v. Hinton,
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I'm not discounting that they reached that conclusion,
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but they didn't do so under the Fourth Amendment
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and they did so under a state constitutional provision
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that is even rigorous than Article 14.
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And again, just (indistinct)
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How important was it in Hinton,
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I know I'm interrupting my own question,
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but how important was it in Hinton
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that the text messages hadn't been delivered?
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So it's hard to quantify exactly how important
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it was to the analysis.
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But I did point out in my brief
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that it appears in the way the court wrote the opinion
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that they viewed those messages,
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because they had not been viewed by the recipient
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as being quote-unquote "in transit."
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And that is more consistent with what federal
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and other state courts, not this court, unfortunately,
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but what other courts have discussed more in depth
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regarding letters or other forms of communication
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that remain in transit that have not reached
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their delivery point.
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And that's sort of puts nicely
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into what I was just going to say,
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which is, this is why we're talking about something
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that's different than this court's pronouncement
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on Augustine or (indistinct) or (indistinct)
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or the Supreme court's decisions in Carpenter and Riley.
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We're talking about data or not data.
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A communication that has reached its recipient
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and been received and viewed.
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So while this court again has not specifically
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a pinned on this subject,
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there's plenty of federal circuit courts and state courts
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that have determined, for example, letters,
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communications via pagers, emails,
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all of those different sorts of communications,
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once delivered courts have a pie in that the sender
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loses standing or a reasonable expectation of privacy.
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However, you want to categorize it,
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I understand here in Massachusetts,
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it's a somewhat divergent analysis,
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although there are overlapping parts.
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But again, I just have to stress,
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we're not talking about what was that issue
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in all the cases I just cited
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in (indistinct) Augustine specifically.
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We're not talking about a search
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of the defendant's cell records or the defendant's phone,
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where there's potentially a huge quantity of data
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on that device.
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We're talking about a single conversation
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that resides on another person's phone.
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It's a very (indistinct)
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(indistinct) Does the sender of the text message
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doesn't have any right to challenge this, right?
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I wouldn't say that he doesn't have any, right,
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I certainly think while this court has not acknowledged
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or not, let's say not acknowledged,
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but not applied target standing in this Commonwealth.
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If you were faced with the factual scenario
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where clearly a third person's phone was being searched
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for the sole warrantless without probable cause,
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solely for the purpose of getting say, Mr. Delgado Rivera,
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I think that would probably present
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the egregious misconduct that might compel this court
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to apply target standing but short.
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But I think we have to distinguish
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standing to challenge the search
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from the legality of the search.
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You have to have standing before you can question
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the legality of the search and if you will apply,
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(indistinct)
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Are you saying, they have no standing
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the federal has no standing orderly?
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I'm saying that no court has found that
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under the Fourth Amendment, (indistinct)
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that this court has never found it in, (indistinct)
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I'm sorry.
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You're saying there's no court has,
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you're saying no court has,
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but that doesn't answer the question, does it?
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No. And I'm saying that I don't believe
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this court's Article 14 jurisprudence
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concerning digital devices is directly applicable
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and compels that conclusion.
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Because this court's jurisprudence concerns, again,
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either surreptitious real-time eavesdropping
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or the search of an actual device
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that belongs to the defendant
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that could contain gigabytes or even a terabyte of data
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or the same in the context of a third-party provider.
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Whereas here, what we're talking about
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is a third parties phone that may have a lot of data on it
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that is relevant to that third party
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(indistinct)
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but the only data of the defendant, (indistinct)
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Excuse me, came from the sender
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the material that you're looking for,
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came from the sender, right?
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That's right.
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And this and the sender no longer has any control over
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that message that has been sent.
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He lacks the ability to control
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what the recipient does with it.
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Just, this is why in modern times we recognize,
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we tell our children, I certainly tell my children
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don't send anything that you don't want to see
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on the internet or on the front page of the Boston Globe,
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because we just, we accept as a society
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that you don't know what's going to happen
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to a digital communication once you send it,
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once it is out of your control.
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Before you get to the objective,
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that point does go to the objective expectation of privacy.
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But is there something different about text messages,
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you've got the first circuit is address this issue in,
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United States versus Dunning.
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And then we have United States court of appeals cases
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and Lifshitz and Guests, and that deals with emails.
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So the question for us is,
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if we're looking at those doctrines,
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is there something different about text messages
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or not really?
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My shorter answer is not really, I don't believe there is.
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And I think it's telling
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that both my brother, (indistinct) brief
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talk about the Commonwealth mention of letters,
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but completely ignore emails.
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If you look at the (indistinct) case
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that my brother cites in his brief,
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now in that case, that happened, I believe it's,
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a little more than a decade earlier.
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And in that case,
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they were talking about emails is the new communication
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that everyone is using to express
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their thoughts and emotions and opinions. And it was right.
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When email first came out,
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it was more prevalent for conversations.
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I would submit then text messages
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because text messages were a little more limiting
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back in the early 2000s
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in terms of what you could do with them.
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But not withstanding that fact,
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that emails were essentially what I would submit
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are the old text messages in terms
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of how prevalent they are in terms of online conversation.
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Courts still have found, like you said,
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in the United States v. Jones, for example,
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all of the state court decisions that I cite now,
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Tentoni, Carl,
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the district of Massachusetts in the Johnson case, I cite
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Liftshitz, Guests.
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They've all found that once an email reaches it's recipient,
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the sender no longer has standing.
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And there's no principled reason
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why this court should distinguish
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an email and a text message.
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They're both, as the Patino case recognized,
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I'm just going to quote it, " There's no medium,
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more susceptible to sharing or dissemination
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than a digital message.
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Be it a text message or an email,
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which does send the recipient a digital copy of the message.
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It can be forwarded to,
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or shared with others at the mere click of a button."
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And again,
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just to get back to the anecdote I was making before,
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this is why we tell our children
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or why people generally understand,
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you have to be very careful when you send a message
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or a file over a phone or the internet,
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because these things,
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they do not disappear once they're sent,
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and they can very easily be re-shared
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or further disseminate.
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Mr. Charles would it matter if they do?
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Because we now have all of these texting and email devices
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where we can send something that is supposed to disappear,
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most to be written in basically digital disappearing ink
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would that matter?
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If you are trying to protect the confidentiality
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of the communication beyond the person you send it to
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just so, it was just sent to one person
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and you don't want it distributed further.
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Again, I would say two things and then I'll,
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first, that is a subjective expectation of privacy
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that you have.
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And second on the, in this case, there's no indication.
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Isn't it an objective
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because I'm using a device,
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where I'm trying to protect the privacy.
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I understand the facts here are different.
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It's not one of these disappearing texts, but rather.
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00:10:37.980 --> 00:10:39.890
Oh, you're asking me if I would say
269
00:10:39.890 --> 00:10:42.730
using telegram or Snapchat or something,
270
00:10:42.730 --> 00:10:44.600
is that essentially what you're asking me?
271
00:10:44.600 --> 00:10:47.630
Because I'm clearly trying to protect
272
00:10:47.630 --> 00:10:49.306
the communication from anyone,
273
00:10:49.306 --> 00:10:51.730
but the one person I sent it to,
274
00:10:51.730 --> 00:10:54.840
and I don't want them to be able to pass it on.
275
00:10:54.840 --> 00:10:58.453
I'm trying to control access to that communication.
276
00:10:58.453 --> 00:11:00.650
So what I will say to that,
277
00:11:00.650 --> 00:11:03.870
the Commonwealth is not discounting the possibility
278
00:11:03.870 --> 00:11:06.410
that there is a set of facts that could exist.
279
00:11:06.410 --> 00:11:08.350
Where on the specific facts of that case,
280
00:11:08.350 --> 00:11:09.840
you might say, you know what,
281
00:11:09.840 --> 00:11:12.692
here there was enough in (indistinct)
282
00:11:12.692 --> 00:11:17.470
and effort to whether it be the use of an encrypted
283
00:11:17.470 --> 00:11:20.770
communications program that is not supposed to be viewable
284
00:11:20.770 --> 00:11:23.730
by anyone who generally accesses the phone or what have you,
285
00:11:23.730 --> 00:11:25.100
that you might be able to say yes,
286
00:11:25.100 --> 00:11:26.970
in this specific instance they're standing,
287
00:11:26.970 --> 00:11:28.100
but the Commonwealth's position
288
00:11:28.100 --> 00:11:31.150
is that as a general principle, no court has held
289
00:11:31.150 --> 00:11:33.660
and in fact, several courts have held to the contrary
290
00:11:33.660 --> 00:11:35.720
that there is no reasonable expectation of privacy
291
00:11:35.720 --> 00:11:38.470
in a text message that has been sent
292
00:11:38.470 --> 00:11:40.590
and now resides on a third-party device.
293
00:11:40.590 --> 00:11:43.760
Once it is received by that person for all the reasons
294
00:11:43.760 --> 00:11:45.425
I've been stating, because it is (indistinct).
295
00:11:45.425 --> 00:11:47.850
It could be is the objective prong as justice Lowly
296
00:11:47.850 --> 00:11:48.820
points out, correct?
297
00:11:48.820 --> 00:11:52.680
So justice Kafker, asks us about technology
298
00:11:52.680 --> 00:11:56.491
that allows that for messages to evaporate,
299
00:11:56.491 --> 00:12:01.491
that may be something objectively we would accept, correct.
300
00:12:03.310 --> 00:12:05.173
But, the regular text message
301
00:12:05.173 --> 00:12:07.413
that even if you put in the text message,
302
00:12:07.413 --> 00:12:10.523
we're doing drug deals, delete this, right?
303
00:12:11.460 --> 00:12:13.093
You still lose control over it.
304
00:12:13.093 --> 00:12:14.540
That's correct.
305
00:12:14.540 --> 00:12:16.370
And just another anecdote,
306
00:12:16.370 --> 00:12:18.470
is this court recognized in (indistinct), right?
307
00:12:18.470 --> 00:12:20.260
Anyone can screenshot a text message
308
00:12:20.260 --> 00:12:22.480
and store it in the photograph file of their phone,
309
00:12:22.480 --> 00:12:24.060
and you have no control as the sender
310
00:12:24.060 --> 00:12:25.930
over whether the recipient is going to do that.
311
00:12:25.930 --> 00:12:28.740
And if the recipient's phone happens to be searched later on
312
00:12:28.740 --> 00:12:30.520
and you anticipated, he was going to delete it,
313
00:12:30.520 --> 00:12:31.353
but it's sitting there.
314
00:12:31.353 --> 00:12:33.840
And even if the phone automatically deletes it,
315
00:12:33.840 --> 00:12:36.840
because say you clear your messages after 30 days,
316
00:12:36.840 --> 00:12:38.557
but it still exists in the photograph file
317
00:12:38.557 --> 00:12:42.130
because that person chose to take a screenshot,
318
00:12:42.130 --> 00:12:44.543
which takes a fraction of a second to do.
319
00:12:44.543 --> 00:12:46.670
It's just, it's going to be there.
320
00:12:46.670 --> 00:12:49.300
And you completely lack control,
321
00:12:49.300 --> 00:12:51.900
which has been the focal point of all these other cases
322
00:12:51.900 --> 00:12:54.113
that have focused on this recently.
323
00:12:54.113 --> 00:12:57.090
And I think it's telling that the two most recent courts
324
00:12:57.090 --> 00:12:58.413
to address this.
325
00:12:59.502 --> 00:13:02.530
What would an example of control be that if you and I
326
00:13:02.530 --> 00:13:04.530
are engaged in surreptitious behavior
327
00:13:04.530 --> 00:13:08.740
and I come up to you and I whisper something to you
328
00:13:08.740 --> 00:13:10.810
in a public place, that's one thing.
329
00:13:10.810 --> 00:13:14.320
But if I'm on my cell phone blabbing on the commuter rail,
330
00:13:14.320 --> 00:13:16.950
like the people that annoy me do,
331
00:13:16.950 --> 00:13:20.150
I've lost all sorts of control, correct?
332
00:13:20.150 --> 00:13:21.780
I think that's a fair assessment,
333
00:13:21.780 --> 00:13:23.840
even as the Supreme court recognized in Katz.
334
00:13:23.840 --> 00:13:25.510
The issue in Katz was that this individual,
335
00:13:25.510 --> 00:13:27.240
while he was in a public phone booth was,
336
00:13:27.240 --> 00:13:29.440
was in the phone booth, having a private conversation,
337
00:13:29.440 --> 00:13:32.680
he didn't expect to be surreptitiously recorded
338
00:13:32.680 --> 00:13:33.513
in real time.
339
00:13:33.513 --> 00:13:35.760
The same thing with this court's decision in (indistinct)
340
00:13:35.760 --> 00:13:38.380
which is not the same thing as having a text message
341
00:13:38.380 --> 00:13:41.120
conversation, which everyone in our society understands,
342
00:13:41.120 --> 00:13:43.260
creates a digital residue of the conversation
343
00:13:43.260 --> 00:13:46.070
that may continue to reside on the other person's phone.
344
00:13:46.070 --> 00:13:47.900
Everyone conducts these conversations,
345
00:13:47.900 --> 00:13:49.680
accepting that that's the case,
346
00:13:49.680 --> 00:13:52.160
text messaging technology while it's evolved is not new.
347
00:13:52.160 --> 00:13:53.300
It's been around for decades.
348
00:13:53.300 --> 00:13:54.830
People have always understood
349
00:13:54.830 --> 00:13:57.430
that the texts will reside on the other person's fault.
350
00:13:57.430 --> 00:13:59.030
And I think that's just a pit
351
00:13:59.030 --> 00:14:00.010
cause I'm running a little low.
352
00:14:00.010 --> 00:14:02.820
That's why this court's sort of limitation
353
00:14:02.820 --> 00:14:05.380
of the third-party doctrine in (indistinct) and Augustine
354
00:14:05.380 --> 00:14:06.830
doesn't really apply here.
355
00:14:06.830 --> 00:14:09.570
When we're talking about a third party, intermediary,
356
00:14:09.570 --> 00:14:12.559
such as a cell phone provider, an internet service provider,
357
00:14:12.559 --> 00:14:14.160
those are the examples
358
00:14:14.160 --> 00:14:16.870
that justice Sotomayor gave in Jones in her concurrence,
359
00:14:16.870 --> 00:14:19.010
when she was talking about the potential need to limit
360
00:14:19.010 --> 00:14:20.330
the third party doctrine.
361
00:14:20.330 --> 00:14:24.760
That's completely distinguishable from a actual third party
362
00:14:24.760 --> 00:14:28.270
recipient that I voluntarily send a message to.
363
00:14:28.270 --> 00:14:31.000
I may be constrained unavoidably
364
00:14:31.000 --> 00:14:33.290
to provide some data to a third party intermediary
365
00:14:33.290 --> 00:14:35.880
because that's the cost of doing business in the modern age.
366
00:14:35.880 --> 00:14:38.370
And that is a justifiable reason why you can say
367
00:14:38.370 --> 00:14:40.860
you don't voluntarily disclose your information
368
00:14:40.860 --> 00:14:41.693
to those people.
369
00:14:41.693 --> 00:14:43.920
The third party doctrine shouldn't necessarily apply,
370
00:14:43.920 --> 00:14:47.240
but I'm knowingly choosing to send a message to somebody
371
00:14:47.240 --> 00:14:48.170
who I'm conversing with,
372
00:14:48.170 --> 00:14:49.850
knowing that a copy of that message
373
00:14:49.850 --> 00:14:51.340
is going to reside on their device.
374
00:14:51.340 --> 00:14:53.170
And as I was saying before,
375
00:14:53.170 --> 00:14:54.810
the two most recent cases,
376
00:14:54.810 --> 00:14:56.600
the boy case and the Armstrong case,
377
00:14:56.600 --> 00:14:58.370
which I cited in my 16 L letter,
378
00:14:58.370 --> 00:15:00.280
they both recognize that there's this distinction
379
00:15:00.280 --> 00:15:03.550
between an intermediary and a recipient.
380
00:15:03.550 --> 00:15:06.800
And they acknowledged that they protected records
381
00:15:06.800 --> 00:15:09.330
in the custody of a third party intermediary
382
00:15:09.330 --> 00:15:10.230
for various reasons,
383
00:15:10.230 --> 00:15:11.850
such as the ones I've just outlined,
384
00:15:11.850 --> 00:15:14.050
but a recipient, someone you're voluntarily
385
00:15:14.050 --> 00:15:16.500
conversing with, is different.
386
00:15:16.500 --> 00:15:18.110
Mr. Charles,
387
00:15:18.110 --> 00:15:21.743
I'm sorry. Justice Lowy then Justice Cypher.
388
00:15:22.580 --> 00:15:24.474
Go ahead Justice Cypher
389
00:15:24.474 --> 00:15:26.267
My question might take us in a little bit
390
00:15:26.267 --> 00:15:27.207
of a different place,
391
00:15:27.207 --> 00:15:29.224
but I was wondering if you could talk to me a little bit
392
00:15:29.224 --> 00:15:33.700
about what the Amicus says about the (indistinct) decision,
393
00:15:33.700 --> 00:15:36.130
in terms of it expanding, standing,
394
00:15:36.130 --> 00:15:39.680
or expanding, standing, I suppose
395
00:15:39.680 --> 00:15:41.050
thinking that we're going
396
00:15:41.050 --> 00:15:43.200
and whether you think that's right.
397
00:15:43.200 --> 00:15:45.250
You're talking, are we talking automatic?
398
00:15:45.250 --> 00:15:48.040
Yeah. Well, (indistinct) had some language in it,
399
00:15:48.040 --> 00:15:51.040
that said as long as someone has a reasonable expectation
400
00:15:51.040 --> 00:15:52.620
of privacy, anybody does.
401
00:15:52.620 --> 00:15:54.410
And I want to know whether,
402
00:15:54.410 --> 00:15:56.540
if that's what they're referring to in the Amicus
403
00:15:56.540 --> 00:15:58.410
and what you think about that.
404
00:15:58.410 --> 00:16:00.560
So it was my understanding that they were referring
405
00:16:00.560 --> 00:16:03.510
to essentially a pleading with this court to expand
406
00:16:03.510 --> 00:16:06.040
its automatic standing jurisprudence,
407
00:16:06.040 --> 00:16:08.060
which the (indistinct) it will not surprise you
408
00:16:08.060 --> 00:16:10.910
to know that the Commonwealth would strenuously oppose
409
00:16:10.910 --> 00:16:14.180
there's no reason to do that.
410
00:16:14.180 --> 00:16:16.951
The basis of automatic standing was essentially,
411
00:16:16.951 --> 00:16:20.460
when we're dealing with possessory offenses,
412
00:16:20.460 --> 00:16:23.550
we recognize that sometimes possessory offenses
413
00:16:23.550 --> 00:16:27.740
arise in circumstances where the object
414
00:16:27.740 --> 00:16:29.490
that is the subject of that crime
415
00:16:29.490 --> 00:16:31.250
may not reside in your house.
416
00:16:31.250 --> 00:16:32.530
It might be in someone's car.
417
00:16:32.530 --> 00:16:33.670
We can narrow this a little further.
418
00:16:33.670 --> 00:16:36.380
Do you think that the language in (indistinct)
419
00:16:36.380 --> 00:16:40.750
that basically said, and I think it cited Carter,
420
00:16:40.750 --> 00:16:43.578
but I'm not sure it cited Carter properly.
421
00:16:43.578 --> 00:16:45.960
Do you think that that was a correct statement?
422
00:16:45.960 --> 00:16:50.413
And was that opinion intended? If you know.
423
00:16:53.280 --> 00:16:54.347
I guess the way I understood it
424
00:16:54.347 --> 00:16:56.860
was in the context of automatic standing.
425
00:16:56.860 --> 00:16:59.729
As long as someone has an expectation of privacy,
426
00:16:59.729 --> 00:17:00.727
even if it's not you,
427
00:17:00.727 --> 00:17:04.200
and it is possessory offense, you would have standing,
428
00:17:04.200 --> 00:17:05.379
but there's no reason.
429
00:17:05.379 --> 00:17:06.331
If it was yours,
430
00:17:06.331 --> 00:17:09.470
if it was a possessory offense (indistinct)
431
00:17:09.470 --> 00:17:11.852
You're charged for possessing it (indistinct)
432
00:17:11.852 --> 00:17:13.160
If you had a possessory interest.
433
00:17:13.160 --> 00:17:14.090
Correct.
434
00:17:14.090 --> 00:17:14.923
All right.
435
00:17:17.290 --> 00:17:18.560
I'm sorry. I was just saying, here,
436
00:17:18.560 --> 00:17:20.524
I don't know if you've finished.
437
00:17:20.524 --> 00:17:23.600
Do you have the finished answers Justice Cypher.
438
00:17:23.600 --> 00:17:25.380
I guess the only other thing I wanted to say
439
00:17:25.380 --> 00:17:28.040
is here, obviously, there's a text message
440
00:17:28.040 --> 00:17:31.180
that is some form of evidence against you in a crime,
441
00:17:31.180 --> 00:17:34.450
but it's not a possessory crime
442
00:17:34.450 --> 00:17:38.260
that is proved by the possession of the text message.
443
00:17:38.260 --> 00:17:41.000
So there's no correlation between what this court
444
00:17:41.000 --> 00:17:42.230
has discussed in (indistinct)
445
00:17:42.230 --> 00:17:43.890
and its automatic standing cases.
446
00:17:43.890 --> 00:17:46.560
And, if I'm misremembering the case, I apologize,
447
00:17:46.560 --> 00:17:49.310
but I just think it's apples and oranges.
448
00:17:49.310 --> 00:17:50.941
There's not really any need
449
00:17:50.941 --> 00:17:54.216
to go beyond traditional standing principles here
450
00:17:54.216 --> 00:17:56.610
and create a whole new prong
451
00:17:56.610 --> 00:18:00.480
of our automatic standing doctrine for sent text messages.
452
00:18:00.480 --> 00:18:03.486
Let's go to justice Lowy if he still has the question.
453
00:18:03.486 --> 00:18:06.180
I'm going wave it as we say.
454
00:18:06.180 --> 00:18:09.480
Okay. Any further questions, Mr. Charles?
455
00:18:09.480 --> 00:18:10.350
Thank you, Mr. Charles.
456
00:18:10.350 --> 00:18:11.840
Mr. Bachrach, please.
457
00:18:11.840 --> 00:18:13.110
Thank your Honor.
458
00:18:13.110 --> 00:18:14.320
Good morning, your Honors.
459
00:18:14.320 --> 00:18:15.567
My name is Barry Bachrach,
460
00:18:15.567 --> 00:18:19.703
and I represent Mr. Delgado Rivera in this case.
461
00:18:20.650 --> 00:18:23.650
I think it's very important to express
462
00:18:23.650 --> 00:18:25.887
that text messages are different.
463
00:18:25.887 --> 00:18:28.557
Text messages are a conversation
464
00:18:28.557 --> 00:18:32.820
akin to telephone conversations,
465
00:18:32.820 --> 00:18:36.440
which the United States Supreme court has been protecting
466
00:18:36.440 --> 00:18:39.846
since at least 1967 in Katz.
467
00:18:39.846 --> 00:18:42.993
And I would submit that the issue here,
468
00:18:46.560 --> 00:18:51.560
if you look at the issue focuses on in our case,
469
00:18:55.580 --> 00:18:57.820
we could go acknowledged it,
470
00:18:57.820 --> 00:19:00.249
putting aside the automatic standing,
471
00:19:00.249 --> 00:19:03.060
I believe that there's a reasonable expectation
472
00:19:03.060 --> 00:19:06.650
of privacy in the send text message.
473
00:19:06.650 --> 00:19:11.433
And in (indistinct) this court said,
474
00:19:12.690 --> 00:19:16.070
after reviewing the citing Riley v. California,
475
00:19:16.070 --> 00:19:20.217
which case required a search warrant to search a cell phone.
476
00:19:20.217 --> 00:19:23.870
The courts said the sending of text messages
477
00:19:23.870 --> 00:19:26.720
creates an expectation of privacy,
478
00:19:26.720 --> 00:19:29.690
that is virtually identical to that associated
479
00:19:29.690 --> 00:19:32.743
with more traditional conversations, such as a telephone
480
00:19:32.743 --> 00:19:35.190
that's my line, such as telephone
481
00:19:35.190 --> 00:19:36.470
and concluded that the Commonwealth
482
00:19:36.470 --> 00:19:38.821
may not obtain the content of text messages
483
00:19:38.821 --> 00:19:42.040
without a warrant, (indistinct)
484
00:19:42.040 --> 00:19:44.970
Mr Bachrach, you know, of course
485
00:19:44.970 --> 00:19:48.230
that was the defendant's text messages.
486
00:19:48.230 --> 00:19:52.260
But if we can go back to the issue of
487
00:19:52.260 --> 00:19:55.420
that you started with the expectation of privacy
488
00:19:55.420 --> 00:19:58.095
and if text messages are different,
489
00:19:58.095 --> 00:20:02.160
why isn't what Mr. Charles was saying,
490
00:20:02.160 --> 00:20:03.970
correct about what we tell our kids
491
00:20:03.970 --> 00:20:06.690
and just sort of the way the world works now
492
00:20:06.690 --> 00:20:10.790
that when you hit that button on the phone
493
00:20:11.730 --> 00:20:13.350
and you send something
494
00:20:13.350 --> 00:20:16.330
you've just lost complete control over it,
495
00:20:16.330 --> 00:20:20.550
no matter how much you may urge the person
496
00:20:20.550 --> 00:20:21.690
on the other side,
497
00:20:21.690 --> 00:20:22.950
that's in near hands,
498
00:20:22.950 --> 00:20:26.453
you've lost complete control over that message
499
00:20:27.350 --> 00:20:30.553
or whatever else you send when you hit that button.
500
00:20:31.640 --> 00:20:34.680
Well, I don't disagree
501
00:20:35.930 --> 00:20:39.770
that there's something happens when you hit the button,
502
00:20:39.770 --> 00:20:44.770
but I don't believe it's an issue of you lose control.
503
00:20:44.890 --> 00:20:49.171
The issue is of texting is texting as I mentioned,
504
00:20:49.171 --> 00:20:51.930
is different and theirs a place far end
505
00:20:51.930 --> 00:20:54.120
and statistics show it's replaced
506
00:20:54.120 --> 00:20:56.810
the modern phone conversation.
507
00:20:56.810 --> 00:21:01.810
And in fact, I think the historical background
508
00:21:04.290 --> 00:21:06.907
provided by the Amicus and this court
509
00:21:06.907 --> 00:21:10.495
has indicated the prevalence of texting
510
00:21:10.495 --> 00:21:13.770
and the prevalence of cell phone use.
511
00:21:13.770 --> 00:21:15.793
And the issue becomes,
512
00:21:16.944 --> 00:21:21.944
I can say many examples of people who texts
513
00:21:22.620 --> 00:21:23.830
to keep things private.
514
00:21:23.830 --> 00:21:26.810
You'll have a room full of people,
515
00:21:26.810 --> 00:21:29.160
and I've sat in them where people
516
00:21:29.160 --> 00:21:31.660
don't want to talk out loud and say what they're saying.
517
00:21:31.660 --> 00:21:34.990
So they text someone because they view it's private
518
00:21:34.990 --> 00:21:37.580
and they're texting it one person to another,
519
00:21:37.580 --> 00:21:41.974
and it's a private conversation intended to be private.
520
00:21:41.974 --> 00:21:46.974
And the fact of losing control is someone could orally
521
00:21:52.450 --> 00:21:57.180
if we're using Mr. Attorney Charles theoretical
522
00:21:58.630 --> 00:22:03.380
or excuse me, Justice Gaziano that you're in a train
523
00:22:03.380 --> 00:22:07.160
and you don't want people to hear what you're saying.
524
00:22:07.160 --> 00:22:11.140
And so you text your personal intimate,
525
00:22:11.140 --> 00:22:13.410
it could be personal intimate details of your life,
526
00:22:13.410 --> 00:22:15.276
nothing criminal (indistinct)
527
00:22:15.276 --> 00:22:18.620
What do you say about the Rhode Island Supreme court
528
00:22:18.620 --> 00:22:21.560
decision in Patino?
529
00:22:21.560 --> 00:22:26.080
Well, I think that decision is very different.
530
00:22:26.080 --> 00:22:29.720
Number one, there was a search warrant in that case.
531
00:22:29.720 --> 00:22:34.720
Number two, in that case there was written consent
532
00:22:34.980 --> 00:22:39.980
given by the person who is found was searched.
533
00:22:40.620 --> 00:22:45.620
She gave written consent, and it also (indistinct)
534
00:22:47.497 --> 00:22:49.697
That may not be my memory of it, but okay.
535
00:22:51.170 --> 00:22:52.310
Excuse me. I'm sorry.
536
00:22:52.310 --> 00:22:55.140
Go ahead. I apologize. Keep on going Mr. Bachrach
537
00:22:55.140 --> 00:22:55.973
There was a major,
538
00:22:55.973 --> 00:22:58.563
the court did not base its decision on the fact
539
00:22:58.563 --> 00:23:01.851
that it was written consent, but it was a factor.
540
00:23:01.851 --> 00:23:06.851
And it was decided in 2014 while before Carpenter,
541
00:23:09.670 --> 00:23:14.670
which United States Supreme court decided the location,
542
00:23:16.110 --> 00:23:18.210
what was decided in Augustine.
543
00:23:18.210 --> 00:23:23.210
But the ruling is based on control in Patino, right?
544
00:23:24.240 --> 00:23:29.240
It's these other factors are, and in Carpenter's different
545
00:23:29.810 --> 00:23:32.570
because we're really talking about this one text message.
546
00:23:32.570 --> 00:23:34.490
It doesn't reveal the whole person's life.
547
00:23:34.490 --> 00:23:39.290
It just reveals, the transaction that's in this issue.
548
00:23:39.290 --> 00:23:43.370
I'm just not sure why Patino isn't correct.
549
00:23:43.370 --> 00:23:45.486
It made focuses on control
550
00:23:45.486 --> 00:23:48.100
and if you want to control your texts,
551
00:23:48.100 --> 00:23:51.100
either put them in disappearing ink,
552
00:23:51.100 --> 00:23:52.513
or don't send them,
553
00:23:53.460 --> 00:23:56.126
call them up, use the phone.
554
00:23:56.126 --> 00:23:56.959
(indistinct)
555
00:23:56.959 --> 00:24:00.513
You can have a private conversation on the phone.
556
00:24:01.629 --> 00:24:03.630
And I'm sure if people know that
557
00:24:03.630 --> 00:24:06.370
they will do those types of things.
558
00:24:06.370 --> 00:24:09.140
Not everyone in our society
559
00:24:09.140 --> 00:24:13.233
even knows the existence of many of these items.
560
00:24:15.170 --> 00:24:19.480
And yet they believe they're using texting
561
00:24:19.480 --> 00:24:23.290
to talk to privately to other people.
562
00:24:23.290 --> 00:24:24.351
If they take the risks (indistinct).
563
00:24:24.351 --> 00:24:26.150
Mr. Bachrach, can I talk to you for a second here,
564
00:24:26.150 --> 00:24:27.620
cause I'm really puzzled here about,
565
00:24:27.620 --> 00:24:31.320
because the question is, where is it more?
566
00:24:31.320 --> 00:24:36.240
Is it more in the telephone conversation category
567
00:24:36.240 --> 00:24:40.880
or is it more in the email category and text messaging,
568
00:24:40.880 --> 00:24:41.800
I'm saying.
569
00:24:41.800 --> 00:24:42.633
Now there's a sense
570
00:24:42.633 --> 00:24:43.700
in which she texted messaging, certainly
571
00:24:43.700 --> 00:24:46.570
watching my teenagers with their magic thumbs,
572
00:24:46.570 --> 00:24:49.690
I can certainly tell you that texting is like conversing.
573
00:24:49.690 --> 00:24:51.340
In fact, they'll even say
574
00:24:51.340 --> 00:24:53.310
that they've had conversations with somebody when they met,
575
00:24:53.310 --> 00:24:56.310
what they had is the text session with them.
576
00:24:56.310 --> 00:24:57.890
In a way that they don't use email,
577
00:24:57.890 --> 00:25:00.831
but still, with a telephone conversation though,
578
00:25:00.831 --> 00:25:03.450
you're assuming it's always going to be private,
579
00:25:03.450 --> 00:25:06.230
but what prevents somebody from putting it on speaker
580
00:25:06.230 --> 00:25:07.190
and letting everybody else in the room
581
00:25:07.190 --> 00:25:08.860
hear what you're saying
582
00:25:08.860 --> 00:25:11.810
or from having it be recorded in some States.
583
00:25:11.810 --> 00:25:14.790
One person's consent is enough in some States
584
00:25:14.790 --> 00:25:15.730
not Massachusetts, of course,
585
00:25:15.730 --> 00:25:18.830
but so I'm not really sure why I see as the difference
586
00:25:18.830 --> 00:25:22.900
between texting and telephoning and texting is emailing.
587
00:25:22.900 --> 00:25:24.863
I wonder if you could address that please.
588
00:25:25.793 --> 00:25:28.350
Where do I see a difference?
589
00:25:28.350 --> 00:25:29.640
Yeah.
590
00:25:29.640 --> 00:25:33.893
I see a difference because texting is,
591
00:25:35.031 --> 00:25:38.610
I don't see a difference to the extent
592
00:25:38.610 --> 00:25:42.050
that a text message is a conversation,
593
00:25:42.050 --> 00:25:44.970
a phone call is a conversation.
594
00:25:44.970 --> 00:25:49.970
This Commonwealth has indicated the importance of protecting
595
00:25:51.780 --> 00:25:55.923
oral conversations by the wire (indistinct) law.
596
00:25:56.760 --> 00:26:01.760
The text messages are like or the flip side of
597
00:26:01.970 --> 00:26:06.173
have become the flip side of the pre,
598
00:26:07.030 --> 00:26:11.267
the phone call where in your, judge,
599
00:26:14.176 --> 00:26:19.176
in your hypothetical or question phone calls,
600
00:26:20.800 --> 00:26:22.520
sometimes you don't know who you're talking
601
00:26:22.520 --> 00:26:23.430
to on the other side,
602
00:26:23.430 --> 00:26:26.176
whether there's people listening in,
603
00:26:26.176 --> 00:26:31.176
whether it's on speakerphone and you're not told.
604
00:26:34.030 --> 00:26:37.470
So you don't necessarily have control about everything over
605
00:26:37.470 --> 00:26:41.630
your phone call either.
606
00:26:41.630 --> 00:26:44.673
But that phone call is protected.
607
00:26:45.830 --> 00:26:49.360
The text messaging should receive,
608
00:26:49.360 --> 00:26:52.213
But this phone call is protected by statute, correct?
609
00:26:53.943 --> 00:26:58.943
By statute and by the Fourth Amendment.
610
00:27:00.140 --> 00:27:02.230
And this quotes Article 14,
611
00:27:02.230 --> 00:27:05.270
that phone call would be protected that it could not be
612
00:27:05.270 --> 00:27:07.963
intercepted without a warrant.
613
00:27:09.910 --> 00:27:11.130
How is this different from the email thou,
614
00:27:11.130 --> 00:27:12.473
I guess that's the question?
615
00:27:13.546 --> 00:27:14.379
And I'm sorry, I didn't hear you.
616
00:27:14.379 --> 00:27:16.390
How is this different from email so?
617
00:27:16.390 --> 00:27:17.223
Because email are not (indistinct)
618
00:27:17.223 --> 00:27:21.404
I think you need to look at the nature of cell phones
619
00:27:21.404 --> 00:27:26.404
and emails, which come from laptops.
620
00:27:28.668 --> 00:27:30.570
(indistinct) there's email in cell phones
621
00:27:31.850 --> 00:27:33.320
I don't think the, I don't.
622
00:27:33.320 --> 00:27:36.520
Yes, you can email in cell phones, I don't.
623
00:27:36.520 --> 00:27:40.010
But just because I don't know how to figure it out.
624
00:27:40.010 --> 00:27:45.010
But with respect to emails from cell phones,
625
00:27:45.320 --> 00:27:49.510
I don't believe the issue has been addressed on emails
626
00:27:49.510 --> 00:27:50.670
coming from cell phones,
627
00:27:50.670 --> 00:27:52.920
which may be the next step because I,
628
00:27:52.920 --> 00:27:56.940
the cell phone to me is different from traditionally emails
629
00:27:56.940 --> 00:28:00.110
came from computers and you would get it.
630
00:28:00.110 --> 00:28:02.600
It was more akin to a letter.
631
00:28:04.125 --> 00:28:05.070
It was a correspondence.
632
00:28:05.070 --> 00:28:08.600
Whereas a cell phone is something you carry around
633
00:28:10.730 --> 00:28:11.940
with you all the time,
634
00:28:11.940 --> 00:28:14.820
and you can use it in connection with texting.
635
00:28:14.820 --> 00:28:19.820
You use it in lieu of making an oral phone call.
636
00:28:21.830 --> 00:28:26.220
One yes, one can email from a cell phone.
637
00:28:26.220 --> 00:28:29.460
But again, I don't think that specific issue
638
00:28:29.460 --> 00:28:30.293
has been addressed.
639
00:28:30.293 --> 00:28:33.620
And I think it should be addressed differently.
640
00:28:33.620 --> 00:28:34.790
Mr. Bachrach,
641
00:28:34.790 --> 00:28:38.480
can I ask you, Mr. Charles gave us an interpretation
642
00:28:38.480 --> 00:28:40.950
of the third party doctrine,
643
00:28:40.950 --> 00:28:44.960
why we would interpret the stuff
644
00:28:44.960 --> 00:28:48.660
that telephone company preserves versus an email
645
00:28:48.660 --> 00:28:52.100
you want to take a crack at why the third party doctrine,
646
00:28:52.100 --> 00:28:54.333
we should carve a big hole in it here.
647
00:28:55.850 --> 00:28:57.970
Your Honors, I don't think we're carving
648
00:28:57.970 --> 00:28:59.446
just with all due respect.
649
00:28:59.446 --> 00:29:02.510
I don't think we're carving a big hole in it.
650
00:29:02.510 --> 00:29:07.192
I think we're, frankly, this case is a logical extension
651
00:29:07.192 --> 00:29:11.693
of Augustines and (indistinct) and (indistinct), which.
652
00:29:16.390 --> 00:29:18.550
Well, Mr. Charles says,
653
00:29:18.550 --> 00:29:23.030
look, you don't have a choice with the phone company.
654
00:29:23.030 --> 00:29:24.940
I don't know if that's exactly true,
655
00:29:24.940 --> 00:29:29.940
but you do have a choice of sending your information
656
00:29:29.970 --> 00:29:32.410
to be of a text, you know,
657
00:29:32.410 --> 00:29:37.400
involuntary versus voluntary disclosures of information.
658
00:29:37.400 --> 00:29:42.400
You want to (indistinct) a little bit for us.
659
00:29:42.923 --> 00:29:46.940
Once you text, it's voluntary
660
00:29:46.940 --> 00:29:50.720
and it goes to the, it's stored in the SCA,
661
00:29:50.720 --> 00:29:55.510
cell service provider stores it
662
00:29:55.510 --> 00:29:57.640
and it's as much out of your hands
663
00:29:57.640 --> 00:30:01.150
and out of your control as when it just,
664
00:30:01.150 --> 00:30:04.013
when it also hits the recipient cell phone,
665
00:30:04.013 --> 00:30:06.240
that to me there's no difference
666
00:30:06.240 --> 00:30:11.240
between it being stored by the cell service provider
667
00:30:13.180 --> 00:30:15.140
and you had (indistinct)
668
00:30:15.140 --> 00:30:16.760
The fact that we carved a hole
669
00:30:16.760 --> 00:30:20.050
in the telephone company information
670
00:30:20.050 --> 00:30:22.320
suggests to you that we should do the same
671
00:30:22.320 --> 00:30:24.440
for this kind of communication,
672
00:30:24.440 --> 00:30:27.170
because they're both voluntary.
673
00:30:27.170 --> 00:30:28.950
Is that right?
674
00:30:28.950 --> 00:30:30.250
Well, they're both voluntary.
675
00:30:30.250 --> 00:30:32.971
And this court has said in carving,
676
00:30:32.971 --> 00:30:37.971
what I believe it's said was a narrow part
677
00:30:38.550 --> 00:30:39.690
of the third party,
678
00:30:39.690 --> 00:30:42.347
this court said (indistinct), citing Augustine,
679
00:30:47.200 --> 00:30:50.296
we further stated that the nature of cellular telephone
680
00:30:50.296 --> 00:30:53.750
technology and CSLI,
681
00:30:53.750 --> 00:30:56.350
and the character of cellular telephone use
682
00:30:56.350 --> 00:30:58.220
in our current society
683
00:30:58.220 --> 00:31:02.270
render the third party doctrine in opposite to that case.
684
00:31:02.270 --> 00:31:06.467
And it just wasn't, this court is focused on
685
00:31:08.760 --> 00:31:11.550
what's the nature of cell phone technology.
686
00:31:11.550 --> 00:31:16.210
What's the character cellular use in our society
687
00:31:16.210 --> 00:31:20.445
and this court's decisions,
688
00:31:20.445 --> 00:31:25.445
as well as the statistics
689
00:31:26.040 --> 00:31:28.600
that were provided by the Amicus brief.
690
00:31:28.600 --> 00:31:32.910
This has shown that cellular telephone technology is new,
691
00:31:32.910 --> 00:31:35.990
it's expanding, it's something we need to address.
692
00:31:35.990 --> 00:31:40.330
And we shouldn't lose rights because we have new technology.
693
00:31:40.330 --> 00:31:41.820
And this is where it is indicated
694
00:31:41.820 --> 00:31:43.298
that we shouldn't lose rights,
695
00:31:43.298 --> 00:31:46.290
because of the use of new technology.
696
00:31:46.290 --> 00:31:49.663
Texting didn't exist, obviously didn't exist,
697
00:31:51.370 --> 00:31:54.270
I don't think it was very popular 20 years ago.
698
00:31:54.270 --> 00:31:57.210
I mean, this is a more recent phenomenon
699
00:31:57.210 --> 00:31:59.290
it's grown in the past decade
700
00:31:59.290 --> 00:32:02.110
and it's become a primary means of communication
701
00:32:02.110 --> 00:32:06.157
for many people who would rather text than talk.
702
00:32:08.930 --> 00:32:13.680
And, this court has always focused
703
00:32:13.680 --> 00:32:17.250
primarily on the protection of conversation.
704
00:32:17.250 --> 00:32:20.960
Mr. Bachrach, is there an issue
705
00:32:20.960 --> 00:32:25.494
of whether or not we should be applying the law in Texas
706
00:32:25.494 --> 00:32:29.770
because, if there's an interrogation, for instance,
707
00:32:29.770 --> 00:32:34.770
in New York and there's no one in the police department
708
00:32:35.020 --> 00:32:38.770
offers to defendant a telephone call,
709
00:32:38.770 --> 00:32:40.820
we have case law that suggests
710
00:32:40.820 --> 00:32:43.430
well, that's not required in New York.
711
00:32:43.430 --> 00:32:47.850
The search that took place is in Texas.
712
00:32:47.850 --> 00:32:50.936
Is there any argument that in determining
713
00:32:50.936 --> 00:32:54.930
the subjective and objective expectation of privacy
714
00:32:54.930 --> 00:32:58.460
that we should be looking at Texas law?
715
00:32:58.460 --> 00:33:02.410
I think that, no, because your Honor,
716
00:33:02.410 --> 00:33:05.630
if they, yes, the illegal
717
00:33:05.630 --> 00:33:07.960
what was determined in the illegal search
718
00:33:07.960 --> 00:33:09.450
occurred in Texas,
719
00:33:09.450 --> 00:33:11.460
information was found in Texas.
720
00:33:11.460 --> 00:33:13.886
But then if you look at the amount of contacts
721
00:33:13.886 --> 00:33:17.110
and the information that they acted upon
722
00:33:18.130 --> 00:33:21.330
from that cell phone and what they did in Massachusetts
723
00:33:21.330 --> 00:33:24.329
to further the investigation,
724
00:33:24.329 --> 00:33:26.973
I would say the substantial contacts
725
00:33:26.973 --> 00:33:30.333
are here in Massachusetts.
726
00:33:31.460 --> 00:33:36.460
And I would, I don't think that the Massachusetts courts
727
00:33:36.987 --> 00:33:40.860
should see to it Texas law,
728
00:33:40.860 --> 00:33:44.250
which I don't believe is address,
729
00:33:44.250 --> 00:33:45.707
Texas law, hasn't been,
730
00:33:45.707 --> 00:33:49.827
there is no Texas law on this issue that I have ever found.
731
00:33:51.957 --> 00:33:54.007
Any further questions for Mr. Bachrach?
732
00:33:56.020 --> 00:33:57.460
Thank you, Council.
733
00:33:57.460 --> 00:33:59.263
You welcome. Thank you.