-: SJC-12919, Commonwealth (indistinct) L. Delgado-Rivera
Mr. Charles.
-: Thank you.
Good morning, your Honors?
Assistant District Attorney,
Jamie Michael Charles from Middlesex,
on behalf of the Commonwealth.
As this court has held,
Fourth Amendment rights are personal
and cannot be vicariously asserted.
This is a case that can be resolved
through traditional standing principles,
which adequately protect this defendant's privacy concerns.
I think it's important to remember at the outset
that we're not talking about as Riley put it,
the vast quantities of digital information
that revealed the privacies of life
that might be implicated by a search
of this defendant's phone or his provider records.
Rather, here the defendant's purported interest
is a tiny sliver of information
that resides on Mr. (indistinct) phone.
A single conversation that the defendant engaged in,
or even a single text that then defendant sent,
knowing that a digital copy would reside
on the recipient's phone.
And I want to be clear, the Commonwealth is not questioning
a defendant standing to challenge a search
of his own digital device
or the data that he has stored with a service provider.
But this is not the surreptitious interception
of a real time voice or digital conversation.
It's not the surreptitious interception
of real-time location data.
It's not the seizure of a digital device
and all the intimacies of the other person's (indistinct)
-: Mr. Charles?
-: Yes
-: I think what the defendants might be arguing here,
is if you take Commonwealth versus (indistinct)
which obviously dealt with the defendant's own phone
and you take the reasoning
in the Washington State Supreme court case in Hinton
that we have here is,
a subjective and an objective expectation of privacy
just in the nature of text messages.
-: Just to be clear, before I dive into that,
no courts, state or federal,
I recognize we're talking about Article 14 here,
although as an aside,
I don't believe it was litigated below,
but there's quite possibly a choice of law issue here
involving whether you apply Texas or Mass law.
But putting that aside,
no courts, state or federal has ever found standing
in these circumstances under the Fourth Amendment
and even state the Hinton,
which founded under its state constitution
did so in a split decision
that relied on a constitutional provision
that does not apply a reasonable expectation
of privacy analysis.
It applies a more rigorous analysis.
I tried to give an example in my brief, for example,
in Washington, warrantless trash pulls
are unconstitutional under the corresponding
state privacy provision.
Whereas they're clearly not in Massachusetts
same thing with bank records,
which in Massachusetts can be obtained via subpoena.
You need a warrant in Washington
to obtain any form of bank.
So, just to be clear, State v. Hinton,
I'm not discounting that they reached that conclusion,
but they didn't do so under the Fourth Amendment
and they did so under a state constitutional provision
that is even rigorous than Article 14.
And again, just (indistinct)
-: How important was it in Hinton,
I know I'm interrupting my own question,
but how important was it in Hinton
that the text messages hadn't been delivered?
-: So it's hard to quantify exactly how important
it was to the analysis.
But I did point out in my brief
that it appears in the way the court wrote the opinion
that they viewed those messages,
because they had not been viewed by the recipient
as being quote-unquote "in transit."
And that is more consistent with what federal
and other state courts, not this court, unfortunately,
but what other courts have discussed more in depth
regarding letters or other forms of communication
that remain in transit that have not reached
their delivery point.
And that's sort of puts nicely
into what I was just going to say,
which is, this is why we're talking about something
that's different than this court's pronouncement
on Augustine or (indistinct) or (indistinct)
or the Supreme court's decisions in Carpenter and Riley.
We're talking about data or not data.
A communication that has reached its recipient
and been received and viewed.
So while this court again has not specifically
a pinned on this subject,
there's plenty of federal circuit courts and state courts
that have determined, for example, letters,
communications via pagers, emails,
all of those different sorts of communications,
once delivered courts have a pie in that the sender
loses standing or a reasonable expectation of privacy.
However, you want to categorize it,
I understand here in Massachusetts,
it's a somewhat divergent analysis,
although there are overlapping parts.
But again, I just have to stress,
we're not talking about what was that issue
in all the cases I just cited
in (indistinct) Augustine specifically.
We're not talking about a search
of the defendant's cell records or the defendant's phone,
where there's potentially a huge quantity of data
on that device.
We're talking about a single conversation
that resides on another person's phone.
It's a very (indistinct)
-: (indistinct) Does the sender of the text message
doesn't have any right to challenge this, right?
-: I wouldn't say that he doesn't have any, right,
I certainly think while this court has not acknowledged
or not, let's say not acknowledged,
but not applied target standing in this Commonwealth.
If you were faced with the factual scenario
where clearly a third person's phone was being searched
for the sole warrantless without probable cause,
solely for the purpose of getting say, Mr. Delgado Rivera,
I think that would probably present
the egregious misconduct that might compel this court
to apply target standing but short.
But I think we have to distinguish
standing to challenge the search
from the legality of the search.
You have to have standing before you can question
the legality of the search and if you will apply,
(indistinct)
-: Are you saying, they have no standing
the federal has no standing orderly?
-: I'm saying that no court has found that
under the Fourth Amendment, (indistinct)
that this court has never found it in, (indistinct)
I'm sorry.
-: You're saying there's no court has,
you're saying no court has,
but that doesn't answer the question, does it?
-: No. And I'm saying that I don't believe
this court's Article 14 jurisprudence
concerning digital devices is directly applicable
and compels that conclusion.
Because this court's jurisprudence concerns, again,
either surreptitious real-time eavesdropping
or the search of an actual device
that belongs to the defendant
that could contain gigabytes or even a terabyte of data
or the same in the context of a third-party provider.
Whereas here, what we're talking about
is a third parties phone that may have a lot of data on it
that is relevant to that third party
(indistinct)
but the only data of the defendant, (indistinct)
-: Excuse me, came from the sender
the material that you're looking for,
came from the sender, right?
-: That's right.
And this and the sender no longer has any control over
that message that has been sent.
He lacks the ability to control
what the recipient does with it.
Just, this is why in modern times we recognize,
we tell our children, I certainly tell my children
don't send anything that you don't want to see
on the internet or on the front page of the Boston Globe,
because we just, we accept as a society
that you don't know what's going to happen
to a digital communication once you send it,
once it is out of your control.
-: Before you get to the objective,
that point does go to the objective expectation of privacy.
But is there something different about text messages,
you've got the first circuit is address this issue in,
United States versus Dunning.
And then we have United States court of appeals cases
and Lifshitz and Guests, and that deals with emails.
So the question for us is,
if we're looking at those doctrines,
is there something different about text messages
or not really?
-: My shorter answer is not really, I don't believe there is.
And I think it's telling
that both my brother, (indistinct) brief
talk about the Commonwealth mention of letters,
but completely ignore emails.
If you look at the (indistinct) case
that my brother cites in his brief,
now in that case, that happened, I believe it's,
a little more than a decade earlier.
And in that case,
they were talking about emails is the new communication
that everyone is using to express
their thoughts and emotions and opinions. And it was right.
When email first came out,
it was more prevalent for conversations.
I would submit then text messages
because text messages were a little more limiting
back in the early 2000s
in terms of what you could do with them.
But not withstanding that fact,
that emails were essentially what I would submit
are the old text messages in terms
of how prevalent they are in terms of online conversation.
Courts still have found, like you said,
in the United States v. Jones, for example,
all of the state court decisions that I cite now,
Tentoni, Carl,
the district of Massachusetts in the Johnson case, I cite
Liftshitz, Guests.
They've all found that once an email reaches it's recipient,
the sender no longer has standing.
And there's no principled reason
why this court should distinguish
an email and a text message.
They're both, as the Patino case recognized,
I'm just going to quote it, " There's no medium,
more susceptible to sharing or dissemination
than a digital message.
Be it a text message or an email,
which does send the recipient a digital copy of the message.
It can be forwarded to,
or shared with others at the mere click of a button."
And again,
just to get back to the anecdote I was making before,
this is why we tell our children
or why people generally understand,
you have to be very careful when you send a message
or a file over a phone or the internet,
because these things,
they do not disappear once they're sent,
and they can very easily be re-shared
or further disseminate.
-: Mr. Charles would it matter if they do?
Because we now have all of these texting and email devices
where we can send something that is supposed to disappear,
most to be written in basically digital disappearing ink
would that matter?
If you are trying to protect the confidentiality
of the communication beyond the person you send it to
just so, it was just sent to one person
and you don't want it distributed further.
-: Again, I would say two things and then I'll,
first, that is a subjective expectation of privacy
that you have.
And second on the, in this case, there's no indication.
-: Isn't it an objective
because I'm using a device,
where I'm trying to protect the privacy.
I understand the facts here are different.
It's not one of these disappearing texts, but rather.
-: Oh, you're asking me if I would say
using telegram or Snapchat or something,
is that essentially what you're asking me?
-: Because I'm clearly trying to protect
the communication from anyone,
but the one person I sent it to,
and I don't want them to be able to pass it on.
I'm trying to control access to that communication.
-: So what I will say to that,
the Commonwealth is not discounting the possibility
that there is a set of facts that could exist.
Where on the specific facts of that case,
you might say, you know what,
here there was enough in (indistinct)
and effort to whether it be the use of an encrypted
communications program that is not supposed to be viewable
by anyone who generally accesses the phone or what have you,
that you might be able to say yes,
in this specific instance they're standing,
but the Commonwealth's position
is that as a general principle, no court has held
and in fact, several courts have held to the contrary
that there is no reasonable expectation of privacy
in a text message that has been sent
and now resides on a third-party device.
Once it is received by that person for all the reasons
I've been stating, because it is (indistinct).
-: It could be is the objective prong as justice Lowly
points out, correct?
So justice Kafker, asks us about technology
that allows that for messages to evaporate,
that may be something objectively we would accept, correct.
But, the regular text message
that even if you put in the text message,
we're doing drug deals, delete this, right?
You still lose control over it.
-: That's correct.
And just another anecdote,
is this court recognized in (indistinct), right?
Anyone can screenshot a text message
and store it in the photograph file of their phone,
and you have no control as the sender
over whether the recipient is going to do that.
And if the recipient's phone happens to be searched later on
and you anticipated, he was going to delete it,
but it's sitting there.
And even if the phone automatically deletes it,
because say you clear your messages after 30 days,
but it still exists in the photograph file
because that person chose to take a screenshot,
which takes a fraction of a second to do.
It's just, it's going to be there.
And you completely lack control,
which has been the focal point of all these other cases
that have focused on this recently.
And I think it's telling that the two most recent courts
to address this.
-: What would an example of control be that if you and I
are engaged in surreptitious behavior
and I come up to you and I whisper something to you
in a public place, that's one thing.
But if I'm on my cell phone blabbing on the commuter rail,
like the people that annoy me do,
I've lost all sorts of control, correct?
-: I think that's a fair assessment,
even as the Supreme court recognized in Katz.
The issue in Katz was that this individual,
while he was in a public phone booth was,
was in the phone booth, having a private conversation,
he didn't expect to be surreptitiously recorded
in real time.
The same thing with this court's decision in (indistinct)
which is not the same thing as having a text message
conversation, which everyone in our society understands,
creates a digital residue of the conversation
that may continue to reside on the other person's phone.
Everyone conducts these conversations,
accepting that that's the case,
text messaging technology while it's evolved is not new.
It's been around for decades.
People have always understood
that the texts will reside on the other person's fault.
And I think that's just a pit
cause I'm running a little low.
That's why this court's sort of limitation
of the third-party doctrine in (indistinct) and Augustine
doesn't really apply here.
When we're talking about a third party, intermediary,
such as a cell phone provider, an internet service provider,
those are the examples
that justice Sotomayor gave in Jones in her concurrence,
when she was talking about the potential need to limit
the third party doctrine.
That's completely distinguishable from a actual third party
recipient that I voluntarily send a message to.
I may be constrained unavoidably
to provide some data to a third party intermediary
because that's the cost of doing business in the modern age.
And that is a justifiable reason why you can say
you don't voluntarily disclose your information
to those people.
The third party doctrine shouldn't necessarily apply,
but I'm knowingly choosing to send a message to somebody
who I'm conversing with,
knowing that a copy of that message
is going to reside on their device.
And as I was saying before,
the two most recent cases,
the boy case and the Armstrong case,
which I cited in my 16 L letter,
they both recognize that there's this distinction
between an intermediary and a recipient.
And they acknowledged that they protected records
in the custody of a third party intermediary
for various reasons,
such as the ones I've just outlined,
but a recipient, someone you're voluntarily
conversing with, is different.
-: Mr. Charles,
-: I'm sorry. Justice Lowy then Justice Cypher.
-: Go ahead Justice Cypher
-: My question might take us in a little bit
of a different place,
but I was wondering if you could talk to me a little bit
about what the Amicus says about the (indistinct) decision,
in terms of it expanding, standing,
or expanding, standing, I suppose
thinking that we're going
and whether you think that's right.
-: You're talking, are we talking automatic?
-: Yeah. Well, (indistinct) had some language in it,
that said as long as someone has a reasonable expectation
of privacy, anybody does.
And I want to know whether,
if that's what they're referring to in the Amicus
and what you think about that.
-: So it was my understanding that they were referring
to essentially a pleading with this court to expand
its automatic standing jurisprudence,
which the (indistinct) it will not surprise you
to know that the Commonwealth would strenuously oppose
there's no reason to do that.
The basis of automatic standing was essentially,
when we're dealing with possessory offenses,
we recognize that sometimes possessory offenses
arise in circumstances where the object
that is the subject of that crime
may not reside in your house.
It might be in someone's car.
-: We can narrow this a little further.
Do you think that the language in (indistinct)
that basically said, and I think it cited Carter,
but I'm not sure it cited Carter properly.
Do you think that that was a correct statement?
And was that opinion intended? If you know.
-: I guess the way I understood it
was in the context of automatic standing.
As long as someone has an expectation of privacy,
even if it's not you,
and it is possessory offense, you would have standing,
but there's no reason.
-: If it was yours,
if it was a possessory offense (indistinct)
-: You're charged for possessing it (indistinct)
-: If you had a possessory interest.
-: Correct.
-: All right.
-: I'm sorry. I was just saying, here,
-: I don't know if you've finished.
Do you have the finished answers Justice Cypher.
-: I guess the only other thing I wanted to say
is here, obviously, there's a text message
that is some form of evidence against you in a crime,
but it's not a possessory crime
that is proved by the possession of the text message.
So there's no correlation between what this court
has discussed in (indistinct)
and its automatic standing cases.
And, if I'm misremembering the case, I apologize,
but I just think it's apples and oranges.
There's not really any need
to go beyond traditional standing principles here
and create a whole new prong
of our automatic standing doctrine for sent text messages.
-: Let's go to justice Lowy if he still has the question.
-: I'm going wave it as we say.
-: Okay. Any further questions, Mr. Charles?
Thank you, Mr. Charles.
Mr. Bachrach, please.
-: Thank your Honor.
-: Good morning, your Honors.
My name is Barry Bachrach,
and I represent Mr. Delgado Rivera in this case.
I think it's very important to express
that text messages are different.
Text messages are a conversation
akin to telephone conversations,
which the United States Supreme court has been protecting
since at least 1967 in Katz.
And I would submit that the issue here,
if you look at the issue focuses on in our case,
we could go acknowledged it,
putting aside the automatic standing,
I believe that there's a reasonable expectation
of privacy in the send text message.
And in (indistinct) this court said,
after reviewing the citing Riley v. California,
which case required a search warrant to search a cell phone.
The courts said the sending of text messages
creates an expectation of privacy,
that is virtually identical to that associated
with more traditional conversations, such as a telephone
that's my line, such as telephone
and concluded that the Commonwealth
may not obtain the content of text messages
without a warrant, (indistinct)
-: Mr Bachrach, you know, of course
that was the defendant's text messages.
But if we can go back to the issue of
that you started with the expectation of privacy
and if text messages are different,
why isn't what Mr. Charles was saying,
correct about what we tell our kids
and just sort of the way the world works now
that when you hit that button on the phone
and you send something
you've just lost complete control over it,
no matter how much you may urge the person
on the other side,
that's in near hands,
you've lost complete control over that message
or whatever else you send when you hit that button.
-: Well, I don't disagree
that there's something happens when you hit the button,
but I don't believe it's an issue of you lose control.
The issue is of texting is texting as I mentioned,
is different and theirs a place far end
and statistics show it's replaced
the modern phone conversation.
And in fact, I think the historical background
provided by the Amicus and this court
has indicated the prevalence of texting
and the prevalence of cell phone use.
And the issue becomes,
I can say many examples of people who texts
to keep things private.
You'll have a room full of people,
and I've sat in them where people
don't want to talk out loud and say what they're saying.
So they text someone because they view it's private
and they're texting it one person to another,
and it's a private conversation intended to be private.
And the fact of losing control is someone could orally
if we're using Mr. Attorney Charles theoretical
or excuse me, Justice Gaziano that you're in a train
and you don't want people to hear what you're saying.
And so you text your personal intimate,
it could be personal intimate details of your life,
nothing criminal (indistinct)
-: What do you say about the Rhode Island Supreme court
decision in Patino?
-: Well, I think that decision is very different.
Number one, there was a search warrant in that case.
Number two, in that case there was written consent
given by the person who is found was searched.
She gave written consent, and it also (indistinct)
-: That may not be my memory of it, but okay.
-: Excuse me. I'm sorry.
-: Go ahead. I apologize. Keep on going Mr. Bachrach
-: There was a major,
the court did not base its decision on the fact
that it was written consent, but it was a factor.
And it was decided in 2014 while before Carpenter,
which United States Supreme court decided the location,
what was decided in Augustine.
-: But the ruling is based on control in Patino, right?
It's these other factors are, and in Carpenter's different
because we're really talking about this one text message.
It doesn't reveal the whole person's life.
It just reveals, the transaction that's in this issue.
I'm just not sure why Patino isn't correct.
It made focuses on control
and if you want to control your texts,
either put them in disappearing ink,
or don't send them,
call them up, use the phone.
(indistinct)
You can have a private conversation on the phone.
-: And I'm sure if people know that
they will do those types of things.
Not everyone in our society
even knows the existence of many of these items.
And yet they believe they're using texting
to talk to privately to other people.
If they take the risks (indistinct).
-: Mr. Bachrach, can I talk to you for a second here,
cause I'm really puzzled here about,
because the question is, where is it more?
Is it more in the telephone conversation category
or is it more in the email category and text messaging,
I'm saying.
Now there's a sense
in which she texted messaging, certainly
watching my teenagers with their magic thumbs,
I can certainly tell you that texting is like conversing.
In fact, they'll even say
that they've had conversations with somebody when they met,
what they had is the text session with them.
In a way that they don't use email,
but still, with a telephone conversation though,
you're assuming it's always going to be private,
but what prevents somebody from putting it on speaker
and letting everybody else in the room
hear what you're saying
or from having it be recorded in some States.
One person's consent is enough in some States
not Massachusetts, of course,
but so I'm not really sure why I see as the difference
between texting and telephoning and texting is emailing.
I wonder if you could address that please.
-: Where do I see a difference?
-: Yeah.
-: I see a difference because texting is,
I don't see a difference to the extent
that a text message is a conversation,
a phone call is a conversation.
This Commonwealth has indicated the importance of protecting
oral conversations by the wire (indistinct) law.
The text messages are like or the flip side of
have become the flip side of the pre,
the phone call where in your, judge,
in your hypothetical or question phone calls,
sometimes you don't know who you're talking
to on the other side,
whether there's people listening in,
whether it's on speakerphone and you're not told.
So you don't necessarily have control about everything over
your phone call either.
But that phone call is protected.
The text messaging should receive,
-: But this phone call is protected by statute, correct?
-: By statute and by the Fourth Amendment.
And this quotes Article 14,
that phone call would be protected that it could not be
intercepted without a warrant.
-: How is this different from the email thou,
I guess that's the question?
-: And I'm sorry, I didn't hear you.
-: How is this different from email so?
Because email are not (indistinct)
-: I think you need to look at the nature of cell phones
and emails, which come from laptops.
-: (indistinct) there's email in cell phones
-: I don't think the, I don't.
Yes, you can email in cell phones, I don't.
But just because I don't know how to figure it out.
But with respect to emails from cell phones,
I don't believe the issue has been addressed on emails
coming from cell phones,
which may be the next step because I,
the cell phone to me is different from traditionally emails
came from computers and you would get it.
It was more akin to a letter.
It was a correspondence.
Whereas a cell phone is something you carry around
with you all the time,
and you can use it in connection with texting.
You use it in lieu of making an oral phone call.
One yes, one can email from a cell phone.
But again, I don't think that specific issue
has been addressed.
And I think it should be addressed differently.
-: Mr. Bachrach,
can I ask you, Mr. Charles gave us an interpretation
of the third party doctrine,
why we would interpret the stuff
that telephone company preserves versus an email
you want to take a crack at why the third party doctrine,
we should carve a big hole in it here.
-: Your Honors, I don't think we're carving
just with all due respect.
I don't think we're carving a big hole in it.
I think we're, frankly, this case is a logical extension
of Augustines and (indistinct) and (indistinct), which.
-: Well, Mr. Charles says,
look, you don't have a choice with the phone company.
I don't know if that's exactly true,
but you do have a choice of sending your information
to be of a text, you know,
involuntary versus voluntary disclosures of information.
You want to (indistinct) a little bit for us.
-: Once you text, it's voluntary
and it goes to the, it's stored in the SCA,
cell service provider stores it
and it's as much out of your hands
and out of your control as when it just,
when it also hits the recipient cell phone,
that to me there's no difference
between it being stored by the cell service provider
and you had (indistinct)
-: The fact that we carved a hole
in the telephone company information
suggests to you that we should do the same
for this kind of communication,
because they're both voluntary.
Is that right?
-: Well, they're both voluntary.
And this court has said in carving,
what I believe it's said was a narrow part
of the third party,
this court said (indistinct), citing Augustine,
we further stated that the nature of cellular telephone
technology and CSLI,
and the character of cellular telephone use
in our current society
render the third party doctrine in opposite to that case.
And it just wasn't, this court is focused on
what's the nature of cell phone technology.
What's the character cellular use in our society
and this court's decisions,
as well as the statistics
that were provided by the Amicus brief.
This has shown that cellular telephone technology is new,
it's expanding, it's something we need to address.
And we shouldn't lose rights because we have new technology.
And this is where it is indicated
that we shouldn't lose rights,
because of the use of new technology.
Texting didn't exist, obviously didn't exist,
I don't think it was very popular 20 years ago.
I mean, this is a more recent phenomenon
it's grown in the past decade
and it's become a primary means of communication
for many people who would rather text than talk.
And, this court has always focused
primarily on the protection of conversation.
-: Mr. Bachrach, is there an issue
of whether or not we should be applying the law in Texas
because, if there's an interrogation, for instance,
in New York and there's no one in the police department
offers to defendant a telephone call,
we have case law that suggests
well, that's not required in New York.
The search that took place is in Texas.
Is there any argument that in determining
the subjective and objective expectation of privacy
that we should be looking at Texas law?
-: I think that, no, because your Honor,
if they, yes, the illegal
what was determined in the illegal search
occurred in Texas,
information was found in Texas.
But then if you look at the amount of contacts
and the information that they acted upon
from that cell phone and what they did in Massachusetts
to further the investigation,
I would say the substantial contacts
are here in Massachusetts.
And I would, I don't think that the Massachusetts courts
should see to it Texas law,
which I don't believe is address,
Texas law, hasn't been,
there is no Texas law on this issue that I have ever found.
-: Any further questions for Mr. Bachrach?
Thank you, Council.
-: You welcome. Thank you.