The U.S. Senate Judiciary Committee recently approved an update to the Electronic Communications Privacy Act (ECPA), which would require law enforcement officers to obtain warrants to access electronic communications such as email, Facebook posts, photos and cellphone communications. It is a huge step forward in updating our privacy laws.
Now law enforcement officials are pushing back. Local police departments across the country are pushing Congress to insert a provision into the new bill requiring cell phone carriers to keep the content of text messages for at least two years. This provision would force companies to change their company policies, and store customer text messages for a minimum of two years. Currently, cell providers implement their own policies regarding storage of text message content.
A public records request by the American Civil Liberties Union found that, as of 2010, AT&T, T-mobile, and Sprint do not store their customer’s text messages. Verizon Wireless and Virgin Mobile stored their customer text messages for up to five days. AT&T stored the contents of text messages for as long as seven years according to the chart.
Text messages are considered gold mines for police officers, investigators, and litigators. In criminal cases, text messages provide a wealth of information about a person’s whereabouts, personal contacts, and communications. Text messaging data has been introduced as evidence in cases involving armed robbery, cocaine distribution, and wire fraud prosecutions. In automobile accident cases, civil attorneys use text messages and other cell phone data to prove negligence and determine the sequence of events leading up to an automobile accident. The National Safety Council has estimated that 28% of all traffic crashes involve drivers using cell phones and texting.
As the popularity of text messaging increase, so does their use in criminal investigations and civil lawsuits. Text messaging is expected to be a $150 billion-a-year industry in 2013, with carriers charging as much as 20 cents per text. According to Forrester Research, more than 2 trillion text messages were sent in the U.S. in 2011. For a lot of people, text messaging is their primary way of communicating with their cell phone. In the face of the provision pushed by law enforcement officials, some argue that text messages are private and akin to sending a letter someone. Others argue that the content will likely be taken out of context by law enforcement officials.
However, law enforcement officers already have access to cell phone data through court ordered subpoenas. The question is, will cell phone providers be forced to change their policies to assist in the investigation and prosecution of cases.
Aaron Watson is a car accident attorney at Levin Papantonio. Mr. Watson has served as president for the Black Law Students Association at Stetson, interned with the United States Department of Justice, and volunteered with the Florida Attorney General’s office. He was selected for the Stallworth Trial Team Award by faculty, named to Who’s Who Among American Universities & Colleges, and was inducted into The National Order of Barristers. Mr. Watson currently serves on the Board of Governors for the American Association for Justice. He also serves on the board of directors for the Florida Justice Association
