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Is Privacy Dead in Washington State?

In the age of Facebook, where people post the most interesting (and potentially embarrassing) things about themselves, are people really concerned about their right to privacy?  In Washington, our state constitution has a very explicit protection of the right to privacy: 

“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Article I, Section 7.

Our state Supreme Court has interpreted this provision of our state constitution to confer greater protection from government searches than the Fourth Amendment to the United States Constitution, on many occasions.

Recently, the court decided, in State v. Hinton,  whether the content of text messages that are sent to another person’s phone are protected by the constitutional right to privacy. 

Hinton had sent text messages to a person the police had arrested for a drug charge. Without securing a warrant, which would have conferred the “authority of law” that the Constitution requires, the police started answering texts they saw on dealer’s phone, some of which were  from Mr. Hinton. Hinton met with the police, thinking he was communicating with his friend, and was prosecuted for a drug charge.

The prosecutors argued that once a person had sent the message, he had no interest in the privacy of its contents. The court rejected that argument, and decided that the content of the message was a “private affair” protected by our state constitution.

In a companion case, the court held that our privacy statute, RCW 9.73 et seq. also protected the communications in a text message from government search absent compliance with the statutory procedures for intercepting or recording a “private communication.”



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