With the rise in government subpoenas directly to individuals demanding that they turn over their private text messages on their personal cell phones, lawyers should be on the lookout for potential Fourth Amendment violations. The U.S. Department of Justice (DOJ) and U.S. Securities and Exchange Commission (SEC) practice of subpoenaing private text messages directly from individuals has become so commonplace that individuals often turn over their text messages as readily as they would any other document requested. In many circumstances, though, the government needs to get a warrant to obtain text messages stored on a personal cell phone. A subpoena is not sufficient.
This article examines Supreme Court precedent requiring a warrant to search a cell phone, and what lawyers should consider when counseling clients on whether they should turn over text messages in response to a government subpoena.