Fourth Amendment

Text Message Privacy Depends on How You Send Your Missives



As it turns out, not all text-messaging services are created equal. The difference between Facebook messaging from your cellphone and texting through the phone's built-in service may seem minimal to most of us, but our odd and archaic laws view them rather differently. As it turns out, it's very likely that your Facebook and Twitter messages are better protected from government snoops than your phone texts, even when you send them from the same device.

The actual message content enjoys protection in boths texts and social-media instant messages. That means the authorities need a warrant to read your missives, no matter how they're sent. But the metadata about your messages can be revealing, too. It shows who you contact, and when you do so.

The American Civil Liberties Union explains the all-important difference:

Under one section of the law, 18 USC 2703(c)(1), the government can compel the production of internet communications metadata, such as the "to" and "from" information associated with emails, with either a search warrant or another type of court order (commonly described as a "d" order). This means that in order to obtain records about emails or Facebook messages, government agents need to convince a judge to issue an order compelling the production of those records.

Another part of the law, 18 USC 2703(c)(2), however, permits the government to obtain local and long distance toll billing records associated with the account with a mere subpoena.

In other words, the government can obtain a list of the numbers (and names) that you call with a subpoena, but finding out the names or email addresses of the people that you email requires a court order.

Phone companies already treat text message metadata in the same way they've grown accustomed to treating information about phone calls. That is, they only request a subpoena, not a warrant. Twitter and Facebook require warrants for that sort of information, whether you use their services through a phone or a computer. Google isn't very forthcoming about how it treats requests for users' data, apparently because it offers several services that offer similar functionality using a mixture of Internet and telephone technology. Google Voice, for example, seems to exist in a legal gray zone when it comes to Fourth Amendment protections.

So text away. Just remember that, privacy-wise, how you send that message really does matter, no matter how little sense that makes.

NEXT: Richard Ben Cramer Dead at 62

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  1. FIrst.

    And seriously…that is like the oldest phone stock photo you could have found,.

    1. Take THAT FoE. I am bringing the “I have that stomach bug thing so I have plenty of time to monitor threads” thing going for me today…Your only chance in during one of my frequent trips to pray to the porcelain god. And you better hope I leave the iPad in on the couch.

      1. I was busy communicating with my friends on myspace.


          good one.

    2. I was looking for an old ’80s shoe-box phone, but I couldn’t get it to work with the text-message theme.

      1. lol

    3. FIrst.

      You are literally worse than Hitler.

    4. Yeah, it must be like 2 years old. Ancient.

  2. …government agents need to convince a judge…

    When’s the last time a judge had to be “convinced” to grant a warrant, for anything?

    Cop: “Hey we want a warrant.”

    Any Judge in America: “Okay.”

    1. classic example of selection bias. you don’t see the warrants where a judge refused to issue them because they never get served, hence it never happens

      classic reasonoid “logick”

      1. Call anyone a bigot for thinking that people should be put in jail for murder lately?

      2. OOOOHHHHHH except for the fact that my wife is a court clerk here in Texas, and when I asked her about it (some years ago), she estimated that only around 5% of warrant requests were ever denied.

        Classic Dunphy “logick”, assuming that I couldn’t possibly know what the fuck I’m talking about because only he is privy to any information about how the legal system works.

        1. PWN’D

        2. Court clerk? What does that cushy rear echelon muthafugga know about anything? She doesn’t have to worry whether she’ll be coming home to you every night. She doesn’t have to make snap-decisions about whether or not a dog is dangerous!

          The Dunf is out there in the trenches, doing God’s work. Therefore, his observations are superior to yours.

          1. no, his observation is false. it’s nowhere near NEVER

            5-10% i’d say is about correct

            if he had said that originally, which is his goalpost moving claim NOW, i would have no beef with that.

            1. Want a blast from the past?

              Dunphy (the real one)| 7.16.12 @ 12:41PM |#|?|filternamelinkcustom

              no, atfpapic, he was not innocent

              he drew a gun on the cops and paid the price

              fuck him

              1. Never Forget

              2. ‘Twas a good kill.

        3. nice.

          i’d say that’s about right.

          it hardly qualifies as never. warrants aren’t particularly hard to write, and PC is not a particularly high standard. most warrants establish probable cause, thus most warrants are approved.

          the vast majority of warrants are very run of the mill. seized lock box from car that had a bunch of cocaine in it. apply for warrant. they are and should be approved.

          1. Why would you be pulling a lock box out of a car without a warrant to begin with? Was it your car? Or did you search it prior to obtaining a warrant in the first place?

          2. While you are technically correct, which is the best kind of correct, I think in casual conversation most people would find the difference between “always” and “95% of the time” to be quibbling over semantics.

  3. Are the sexts that NutraSweet sends me protected? If not, they should be, because while I’ve built up an immunity, most people seeing them would react like someone seeing a Medusan.

    1. Medusan

      Is that, like, a really smart Medusa or something?

      1. No, it’s your mom.

        1. Oh, it’s something from that gay show you like. Gay.

    2. My ballsack turns his cock to stone. Because he is totally gay.

      1. I am the gayest monster since gay came to Gaytown, after all.

  4. On Topic, I wish silent circle wasn’t so expensive and that more of my friends and family were more paranoid like me. I and one other paranoid guy actually use PGP for all our e-mail…more people need to do that.

    1. Only the strong paranoid survive

    2. I was discussing with an IT friend the other day about how we, as an industry, blew it by not making encryption and signing of emails defacto standards before email blew up and everyone had one.

      All the mail readers would have it built in now, was my theory.

      He says it wouldnt have mattered. Other email standards were destroyed by mass use of email too.

      1. Being very interested in this sort of thing I have read up a great deal on it. And Bruce Schneier thinks the problems are mostly user related and until the tech can eliminate the user’s need to do anything there will always be easy breaches. A simple pass phrase change from password would do wonders but there is too much social(read lazy) inertia.

      2. Not like dedicated hackers or government don;t already corner the encryption/decryption market anyway, and your average shmo’s phone would not even give them a bit of a challenge to crack.

  5. fwiw, the metadata is no longer available by mere subpoena here in WA. not sure if it’s a 9th circuit thang, or a WA supreme court thang…

    i wrote a bunch of those subpoenas when i worked street crimes unit

    1. it is if you’re a fed, and that’s what this post was about

      1. i wasn’t aware this article was only talking about feds.

        considering the vast majority of warrants are written at the state/local level, well…

        either way, the feds would be restrained by the 9th, but not the WA supreme court. again, i admit i have no knowledge which court it was.

  6. The last time a telecom company tried to force the government to get a warrant they threw the CEO in jail. I am not sure Facebook, twitter, and google will hold out long to any kind of pressure regardless of what archaic laws state.

    1. rubbish. every single day, telecom etc. companies force us to get warrants (pursuant to state and federal constitutions).

      if i want to read your email, for instance, i need a warrant.

      one incident (or a couple)=/= “the last time”. it happens every day that LEO’s are forced to get warrants due to corporate policy

      1. Cliche Bandit is referring to this

        Nacchio claimed his trial was retribution for not cooperating with the NSA and his defense to insider trading charges was that he had inside information.

        1. He was no saint but I was at Qwest at the time and aside from some one off’s many people saw him as an ineffective yet principled leader…most of us said “You have no idea what you bought into with the CWA” and unfortunately we were right.

          1. This does not negate the fact that almost all of the employees blame him for their entire retirement going into the shitter…my question is why is your 30 year nest egg in one speculative basket anyway?

            1. Yes, even though he wasn’t the only turd to sit at the top of 1801 California. Sol, McAllister, and McCormick were all pretty worthless.

              My own impression of of Joe was that he carried a chip from AT&T on both shoulders and would do anything to show them what a mistake they made when they passed him over for the CEO slot.

              1. The only redeeming quality of Trujilo was that he started as a lineman.

                1. The man who got fired on three continents.

            2. A lot of those 401k geniuses forgot how much of their paper gains were based on the run up in 1999-2000. Actual losses of contributions + normal investment gains would be less by a factor of 2 or 3.

              1. Now THIS ^^^ Gentleman/woman knows of what they speak…please tell me you didnt work in Denver?

                1. I didn’t work in Denver (but my paycheck did come from there).

    2. IF I were to deign to respond to any individual who has demonstrated a consistency in arguing in bad faith and with a near sociopathic zeal, and IF I were to attempt to provide a benefit to the casual reader as opposed to self flagellate and debase myself by entering into an unproductive and desultory barrage of insults and logical fallacies, my response would be strikingly similar to the following:

      Having worked in the telecommunications industry for over 17 years and for ILECs, CLECs, and MSOs, I can quite easily state that anyone who says LEOs are “forced” to get warrants for records requests is speaking out of school. The only company for which I worked that did not, as far as I know, comply willingly and with alacrity was the same one that ended up having their CEO go to jail. It was common practice for the FBI in particular to simply send an e-mail through a procedural channel and receive records post-haste. The only time a warrant was “demanded” was for wiretaps. And the GC for one company made it clear that no employee should hinder a Fed (no mention of local PDs) in obtaining documents and records lest they be subject to disciplinary proceedings. The only exception was for records of the company itself in which case one is supposed to contact the legal department and refer all requests. We even had “compliance training” once a year.

      Your welcome Riggs.

  7. how you send that message really does matter, no matter how little sense that makes.

    This is what happens when “rule of law” means ‘rule of the letter of law, as arbitrarily written legislation by men in a particular region, for any reason, that gains power by backing of the state’

    1. rule of law is infinitely better than the alternative sometimes it brings out strange results.

      my favorite is having to read implied consent warnings to an arrestee who is currently UNDER THE INFLUENCE OF ANESTHESIA and can’t hear a word i say. he’s under anesthesia. but if i don’t, it gets tossed. that’s stupid and weird, but it’s because of how the law was written. when rule of law leads to bizarre or bad results there are remedies, – change the law

    2. Rule of law, you mean like those get out of jail free cards in NYC? Awesome.

  8. Under FISA the court must find that the proposed surveillance meet certain “minimization requirements” for information pertaining to US persons.

    If you think that using Facebook instead of AT&T to send a message is going to protect you from the government reading your text messages you are sorely mistaken. Even though FISA hasn’t given complete immunity to private carriers or FB yet, they pretty much cooperate already anyways. And the FISA court is a joke. They use an ex parte order to process the warrants and there is no provision for a release of information regarding such hearings, or for the record of information actually collected.

    I wish more people had listened to what Rand had to say about FISA, or more specifically I wish Rand Paul was president right now.


    I posted this in the AM links. It is actually worse than even as told in this post. Not only do you not have any privacy, your privacy can only be violated by Prosecutors. So in a murder case in the above article the defense attorney has reason to believe there is a Facebook conversation where one of the main witnesses admits to being pressured by police into lying. But he can’t get Facebook to honor the subpoena and give the transcript because “the federal Stored Communications Act protects the privacy of electronic communications like e-mail ? but carves out an exemption only for law enforcement.”

    As a special nut kick in the article, no one seems to be concerned that the conversation is Brady evidence and the prosecution is thus under an obligation to both obtain it and turn it over to the defense.

    1. “where one of the main witnesses CLAIMS that police pressured him into lying”


      i realize that it is always the assumption that any claim that goes against law enforcement MUST be true, but jeez talk about letting a bias just drip through your post.

      1. Gee Dunphy, because it might not be true that certainly means we should never look at the conversation and get to the truth of the matter. It doesn’t matter whether or not it actually turns out to be the case. What matters is whether there is reason to believe it might be the case. That is what gives you basis to get the subpoena.

        This is why you are a cop and not a lawyer.

        1. no, it means you treat a claim as a CLAIM not as the truth.

          that’s what i do when i interview a witness, or a suspect or an alleged victim, and that’s what (real) journalists do

          “bla bla bla Malcolm says”

          your metapoint is correct. we should look at the conversation, but the PREMISE is unsound. we do NOT know he was pressured. we know (assuming he made such a post) he CLAIMS to have been pressured. fwiw, it is not unusual for people who regret cooperating with police and “ratting” somebody out to try to save face by claiming they were pressured. SOMETIMEs of course they are pressured. many times of course they are not.

          i recall some nimrod making that claim in a death investigation inquest when she said that she had seen the deceased putting the gun in the center console earlier. she claimed it wasn’t true, that she was “pressured’.

          fortunately, she was so high on crack, she forget her interview had been recorded and the recording showed she hadn’t

          rule #1 for investigations and those involved in critical thinking vs. being spoonfed by media – claims aren’t always true

          it has nothing to do with me being a cop or a lawyer, except , as an officer of the court i have a duty- when i’m involved to speak truthfully- and the TRUTH as known to me would be that he CLAIMED X, not that X happened.

          1. his defense attorney, as a biased advocate can of course claim he was pressured. that’s his job. has nothing to do with being a lawyer or being a cop has to do with being a admittedly biased advocate interested only in shifting blame away from one’s client, or a neutral third party.

            i’ll do what journalists, cops, and UNbiased lawyers do, which is not assume all claims are true because they go against police claims

            1. You completely miss the point for a second time. The point is that as long as there is a reasonable basis to think the conversations is relevant to the issue, either side should be able to get it.

              And since you are a cop this probably comes as a surprise to you, but defense attorneys often have a point and occasionally witnesses do actually tell the truth in ways that don’t benefit the government.

              1. As Dunphy will surely explain, you just don’t get it John. You haven’t been ON THE FRONT LINES OF CRIME like he has, and thus your lawerin’ ways are just rabble rousing and stop the good cops from doin’ their job to protect and serve.

                And if that means denying the defense discovery of conversations that would dismiss the charges, well, we need to break some eggs to fight for justice sometimes man.

                IT’S FOR YOUR OWN SAFETY.

                1. you can backpedal away from the main point. i note nobody refutes it, because i was correct.

                  a CLAIM was made. it is not known that the witness was pressured by police. no court has taken judicial notice of that.

                  all we know is he has CLAIMED that is the case

                  that is the distinction i made and it is correct

                  and of course if the op is intellectually honest, he will never admit that his claim that the witness was pressured assumes he is telling the truth, and without any disclaimers

                  again, that’s why journalists, cops, report writers etc. write things like “Johnson says he was pressured by police”


                  “Johnson was pressured by police”

                  that’s one of the quickest ways to differentiate between hack “journalists” and those doing their job. how they handle claims

              2. i agree. but it has nothing to do with the fact that the relevant claim is a CLAIM not the truth almightly as you claim

                yes, witnesses do often do that.

                i, personally, have done that (testified for the defense)

                you still backpedal away from the main point

                1. you still backpedal away from the main point

                  The main point is that evidence should be available to both sides.

                  The claim semantics is a minor point.

                  1. “The claim semantics is a minor point.”

                    And pretty irrelevant. All you can know from any recorded conversation is that someone said something.

        2. “This is why you are a cop and not a lawyer.”

          I love it when dunphy and other cops try to play attorney.

          1. im not playing attorney. i testify far more than most attorneys, and i, unlike the OP, know that a claim =/= truth. it equals possible truth.

            there is nothing special about attorneys. i work with plenty of cops who are attorneys. i see no special insight into the law from them. most attorneys don’t even handle crim. law and the average cop is going to know far more crim law, and often far more case law thanthe vast majority of attorneys, except for those that specialize.

            i guess the underlying assumption by the reasonoid is that attorney is elevated above cop

            i make more money on an hour for hour basis than many attorneys and polling data shows that i, as a cop, am entitled to more respect for my profession than an attorney.

            if i wanted to be one, i would be one. most that i know do not like their jobs, that’s why i’m not an attorney

            most cops i know like or even love their jobs. i love my job.

            on the pay thing, i get 95k BASE salary. if i worked a 60 hr work week like many attorneys, you are looking at 140k plus a take home car, plus 100% paid medical, etc. that compares favorably to many attorneys. especially when you consider no law school to pay off.

            1. i, as a cop, am entitled to more respect for my profession than an attorney.

              I believe sloopy has demonstrated, upthread, exactly how much respect you are entitled to.

              1. I can remember when a claim had the weight of the truth behind it even when it was physically impossible based on the evidence. As a matter of fact, here is a case where exactly that happened. No witness to corroborate the cop’s claim that he pointed a gun at them and angles of entry that make the claim unreasonable to anyone with a cursory background in firearms, doors or architecture. But nevertheless, after his coworkers investigated him, the cop walked with little more than a paid vacation after killing an innocent man that has been referred to (on these pages by our very own clown-shoes cop!) as a “fucking moron”.

                1. I can remember when a claim had the weight of the truth behind it even when it was physically impossible based on the evidence.

                  Hey now, this claim was made by men who have taken an oath! An oath I tell you! An oath! The physics must be wrong! They took an oath!

    2. but carves out an exemption only for law enforcement.”

      Isn’t a defense attorney considered an agent of the court? I would think he would have the same rights of subpoena as a prosecutor with regards to getting evidence.

      1. You would think so, but apparently not.

      2. Yeah, but not in the sense that he’s law enforcement. It’s more like a “follow the court rules and legal ethics” type thing.

        1. yes. he has the power of discovery and subpoena though, althouhg it is obviously limited

          if the claim existed as claimed :l and the prosecutor knew about it, it SOUNDS correct to me that the prosecutor would be required to turn that over. the underlying point sounds correct.

  10. What if the SMS service on a smartphone isn’t provided by the wireless carrier, but rather, through a third party app? What if the SMS messages are transmitted over the internet to a 3rd party’s servers (perhaps even the same 3rd party that provides email and IM services) rather than servers provided by the wireless carrier? In such a scenario, are the text messages more like a telephone service, or an electronic communications service like email? Who knows?

    So I guess the answer to the question I was going to ask about iMessage’s status is, “who knows?”?

    1. The issue will be decided by a political hack judge who is barely knowledgeable enough to use is email.

      1. this is true, and this IS a problem. there are a lot of technology related 4th amendment issues that need to get decided every day in our great nation, and sometimes “the decider” doesn’t understand the underlying technology leading him to analogize to a non-relev ant theory and munge up the warrant.

        1. See e.g., how many judges think an IP address is like a personal identification card on the internet.

          1. yea, that’s a big one. happens a lot in domestic violence cases.

            hint: if a no contact order is violated by a message being sent from respondent’s home IP address, you are probably going to get charged.

            lesson: make sure your housemates aren’t going to fuck you over

      2. Of course. That’s what he has a clerk for.

      3. If at all possible, never get involved in an IP dispute at the state level. Federal judges at least have a chance to have a clue in that area. State, no fucking chance.

  11. OT (I’m late to the party today, so sue me!): One of the most poorly written and slanted articles I’ve ever read.

    The stupidity in the article itself is only topped by the idiocy in the comments. Peak. Fucking. Retard.

    1. We already know that climate change is loading the weather dice. Scientists have shown that the European heatwave of 2003, that caused over 40,000 premature deaths,

      No mention of how many of those deaths were the result of socialist Frenchman running off to vacation and leaving the old and the sick to die.

    2. memoid
      08 January 2013
      @EnviroCapitalist – Dude: air conditioning makes the outside world hotter, by pumping the heat it removes from inside the building, outside… and by emitting the energy it uses to do the pumping. Air conditioning is literally part of the problem.

      Umm, I really do not know what to say to this.

      1. I fucking warned you guys.

        Try this on for size:

        08 January 2013 12:33 PMLink to this comment
        Interesting and helpful comment.

        I was aware of the extreme heat event in Australia, but was not aware that at the same time China is also experiencing extreme winter conditions. Just more confirming evidence that extreme weather events are happening more frequently.

        “More frequently” on what timeline and including what data? These people are abandoning the scientific method in an effort to play class warfare.

        1. I thought EXTREME! died with the aughties.

          Wake me when we have EPIC conditions.

          Or hey, maybe the Chinese can dig a tunnel to Australia and let the weather even out?

    3. When weather doesn’t do what the climate modelers predicted, that’s no proof that perhaps the models are wrong.

      But every single bit of “extreme” weather is iron-clad proof that Glowball Warming Is Real and will kill us!!!!!

    1. Look, he’s trying to look manly and hide his sallow, sunken cheeks with that beard. FAIL.

    2. You better stop making fun of MurderJesus. He knows if you’ve been sleeping. He knows if you’re awake. He knows he has taken a shower. So don’t make fun goodness’ shake.

        1. It was an Italiam sonnet. [runs crying from the room]

        2. Artis’nal mayo
          Domestic violence, man,

          1. You’re dead to me now
            Do you know that, Dagny T?
            Fucking dead to me.

  12. I know all the Bama fans are celebrating today, but I have a serious question for them: was it depressing after you guys lost a game this year? I only ask because I still don’t know what it feels like to watch your football team lose this past season.


    1. sloopyinca

      You traded in your chance at the BCS title for a Gator Bowl loss.


      1. I have no idea why I copied your name into my post.

      2. No, we traded our chances for a BCS title by not throwing Tressel under the bus when it turned out he was covering up the investigation. Well, that and when Gene Smith and Gordon Gee shot their mouth off and said the NCAA wasn’t gonna do shit.

        And as an aside I remember somebody said on here the other day that a major program was supposedly looking at Tressel. I have to say there’s no way that’s happening with that Show-cause albatross around his neck.

        1. Even despite all that, all you had to do was take your bowl ban last year.

          USC managed to take their two years of bowl bans BEFORE the 4 years of reduced scholarships kicked in.

          1. The bowl ban wasn’t announced by the NCAA until after they had already accepted their Gator Bowl bid. Pulling out of the game at that point would have been a classless move.

    2. Here is the exact moment I knew that ND was doomed last night:

      USC 281 yards, 13 points vs Notre Dame
      USC 205 yards, 7 points vs Georgia Tech

      Those are the 2 USC games without Barkley at QB. When your defense isnt as good as my team’s D, even if you assume some one game flukiness, it means you dont really have a top notch D and wont be shutting down Bama.

    3. Alabama would have beaten TOSU by 50.

      1. Get the fuck out of here. I mean, Bama was pretty awesome this year, but to say they’d beat a team by 50 that was really coming into their own by the end of the season and went undefeated by the way, is fucking nuts.

        Either way, that didn’t answer my question wondering what it felt like to have your team lose this year. Hopefully I won’t know next year either, and the schedule sets up pretty well.

  13. I know I am in aluminum foil fedora territory here, but it wouldn’t surprise me a bit if the NSA scans (and possibly stores) every email, text, etc. in the US, data mining for who knows what, building lists of relationships and opinions.

    If true, God bless you, NSA. Ken Jennings, Watson, people who remember trivia, we’re nothing compared to you. You’ll know for all time what a bitch Debbie in accounting is, that Fred needs to pick up some milk and diapers on the way home, who anon-bot really is?

    1. I have no idea what makes you think this is tinfoil-hat territory. I have assumed it since I set up my first hotmail account years ago.

      Shit, thinking the NSA didn’t scan every email and other form of electronic transmission would be insane.

      1. People treat it like tinfoil-hat territory because the alternative is to accept the government is out of control and spies on its citizens all. The. Time.

        1. In the war on terror, everyone is guilty until proven innocent.

    2. It’s really not in dispute anymore. They are building a gigantic data warehouse in Utah.

      1. Hey, my brother lives in Bluffdale.

        And I thought all those polygamists lived in Eagle Mountain.

  14. Perhaps if you have something to hide, you should avoid traceable electronic communication altogether.

    1. And if you have something to hide in your house, perhaps you should never open the door.

      Fuck that “if you have” bullshit.

    2. Most people have something to hide, M.

      1. Thats because all of us are criminals, committing new crimes every day, due to the fucked up pile of ridiculous and insane laws our government has straddled us all with. You are only safe until you piss big brother off. Then they hammer you.

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