Communications and Media

Are Your Text Messages and Images Private?

Updated by Brian Farkas, Attorney
The extent of your cell phone privacy depends on several factors.

Unlike telephones of the past, cell phones contain far more than simply a list of contacts and people with whom you have spoken. They contain text messages, emails, photographs, videos, and all sorts of data regarding your location, spending habits, and finances.

With so much data contained on your phone, and being sent to and from your phone, you may wonder: Is all of that information private, or can someone else read your messages, look at your images, and download your data?

The answer to that question is somewhat complex. The extent of your privacy depends on several factors, including who exactly owns the phone, the nature of the information on the phone, and whether law enforcement has some interest or need for the information on the phone.

General Rules for Service Providers

Your provider or "carrier" keeps records of your cell phone use, including calls and text messages, and even pictures, sent from your phone. Almost all cell phone carriers give detailed information about phone's use in billing statements sent to the owner.

These details include when a text message or image was sent from your phone and, for some plans, the cost of the text or data usage. If you are charged for data sent to your phone, the bill likely will show when it was sent. However, the phone bill does not tell you what was written in a text message or show you the picture.

So, what can you do if you want to read or see that information? For example, what if you suspect your spouse of having an extramarital affair and you want to see whether there's some secret texting going on? What if you want to make sure that your teenager isn't sending or receiving inappropriate pictures over the phone, or "sexting?"

As a general rule, the cell phone carrier cannot help you. Under federal privacy laws, such as the Consumer Telephone Records Protection Act of 2006, your cell phone carrier cannot give you these phone records, even if you own the phone and pay the bill. That's because these records often show messages sent and received by someone else, and that person has privacy rights.

There are some exceptions, though. If you think your phone is being used for criminal activities, or if you are being harassed or threatened through text messages, you may be able to get a court order requiring the phone carrier to release the records. Also talk to an attorney or your local police department immediately.

You should additionally know that some cell phone carriers limit how long they store text messages and images on their servers. This could be anywhere from a few days to a few weeks. So, if you need to see this material, you should act quickly to retain a lawyer and have the attorney serve subpoenas or demands.

Other Options on Accessing Cell Phone Data

If you own the phone, or if you're dealing with your child's phone use, you may want to consider looking at what's stored in the phone itself. In most instances, you would not be breaking any laws, although you may have an ethical duty not to pry or invade your child's privacy.

Most cell phones store messages and pictures until someone "cleans" or deletes items on the phone, or the phone deletes information automatically to make room to store new messages or pictures.

Take care, though, if you snoop around your spouse's phone. Unless you legally own the phone, share it with your spouse, or he or she lets you look at it, you may open yourself up to a civil suit for invasion of privacy and may have to pay money damages if you look at messages or pictures on it.

Another option is digital forensics. Here, someone who is highly trained in digital technology can retrieve text messages and images from the phone even if they've been deleted. Again, to make sure you avoid legal problems with privacy laws, you must be the owner of the cell phone to do this. Or, you may avoid the problem if the phone belongs to your child. Also keep in mind that it may be expensive to have the phone examined by a forensic specialist.

The Government's Ability to Review Your Phone Data

If there is probable cause to investigate criminal activity, state or federal law enforcement officials would be able to obtain a search warrant, or wiretap authorization, from a judge. Such a warrant would give law enforcement the ability to collect certain records from your phone or service provider, depending on its terms. This information would not be released publicly during the course of the investigation, but could eventually become public if a prosecutor decides to bring charges and introduce your records into evidence.

In the United States, the Fourth Amendment protects from unreasonable search and seizure of property by the government, which includes cell phone data. However, there is very little information that is out of the government's reach if there is probable cause of criminal activity.

And if you're entering the U.S. from another country, your Fourth Amendment rights are reduced. U.S. Customs and Border Protection officials have been requesting access to travelers cell phones; a practice that may require court action to define clear limitations on.

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