Spence Howden, ‘Text Messages Are Property: Why You Don’t Own Your Text Messages, But It’d Be a Lot Cooler If You Did’

Abstract
Courts have yet to consider whether text messages are property, but they will soon. As our lives become more and more centered around our smartphones, text messages will displace e-mails as the primary means of electronic communication (if that hasn’t already happened). We currently don’t have an effective means of recourse available should our cellular providers purposefully block or delete our text messages.

The answer lies in property law. This Note argues that text messages are intangible personal property, which leads to two practical outcomes.

First, text message ‘owners’ can successfully sue using property‑based causes of action (eg, trespass to chattels and conversion) when their ownership rights over their text messages are disturbed by the service provider or cell phone manufacturer. Although there have been few legal challenges brought by aggrieved text message owners, they have been universally unsuccessful in causing cellular providers to change their ways. Had these aggrieved text message owners sued under a property-based cause of action, they would have successfully enjoined the cellular providers from continuing to mess with their text messages.

Second, a judicial determination that text messages constitute intangible personal property will close the third-party loophole. As it stands, the government is free to search the contents of our text messages because we have voluntarily conveyed the information to our cellular service providers. However, if courts find that text messages constitute a form of property, an encrypted text message starts to look more and more like a sealed letter than public information. The framers designed the Fourth Amendment to prevent unwarranted searches and seizures of the dominant form of communication of their day: sealed letters. Consequently, it only makes sense to extend the Fourth Amendment’s protection to the dominant form of communication today: encrypted text messages.

Howden, Spence, Text Messages Are Property: Why You Don’t Own Your Text Messages, But It’d Be a Lot Cooler If You Did (March 2, 2018). Washington & Lee Law Review, 2019, forthcoming.

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