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When Roden arrived for the transaction, he was arrested.¶ 5 Roden was charged with attempted possession of heroin. At issue here is whether the text messages were “private communications” and if so, whether they were “intercepted” within the meaning of the statute. Finding the detective's action to be an interception is consistent with the ordinary definition of “intercept”—to “stop ․ before arrival ․ or interrupt the progress or course.” Webster's Third New International Dictionary 1176 (2002). This interpretation gives effect to the legislature's intent at the time section .030 was enacted and the plain language of the statute. Jennen, 58 Wn .2d 171, 173, 361 P.2d 739 (1961).¶ 36 One year before our legislature enacted RCW 9.73.030, the United States Supreme Court held that the Fourth Amendment to the United States Constitution does not protect against undercover agent interceptions or recordings of private communications. Notably, this case arises under Title 9 RCW, titled “Crimes and Punishments.” Any person who intercepts, records, or divulges private communications without the consent of the communicating parties is guilty of a misdemeanor. The majority would hold that Detective Sawyer is guilty of a misdemeanor for reading and responding to the text messages. Thus, I would adopt a strict interpretation of the statute and require that the interception occur before arrival, during transmission. Related provisions support a strict interpretation¶ 49 Other provisions of chapter 9.73 RCW indicate that the legislature did not intend to criminalize accessing an electronic communication after it had reached its intended destination. But because the parties do not brief these issues, I will not address them.2. By a five-to-four vote, the Court held that the tapping was not a search or seizure in violation of the Fourth Amendment as there was no seizure of anything tangible and there was no entry on the premises of the defendants. Roden moved to suppress the evidence obtained from the i Phone, claiming the evidence was obtained in violation of article I, section 7 of the Washington State Constitution, the privacy act, and the Fourth Amendment to the United States Constitution. We answer both questions affirmatively and do not reach Roden's constitutional arguments. Whether the Text Messages Were Private Communications¶ 11 The act does not define the word “private,” but we have adopted the dictionary definition: “ ‘belonging to one's self ․ secret ․ intended only for the persons involved (a conversation) ․ holding a confidential relationship to something ․ a secret message: a private communication ․ secretly: not open or in public.’ “ State v. We will generally presume that conversations between two parties are intended to be private. Modica, 164 Wn.2d 83, 89, 186 P.3d 1062 (2008).¶ 12 Roden's messages to Lee were private communications. Unlike in Townsend, where the defendant communicated directly with the officer's fictitious online profile, the detective here intercepted text messages directed to an actual acquaintance.¶ 22 We reject the contention that the detective did not intercept the messages because he was a party to the communication. ANALYSIS¶ 29 Washington's privacy statute provides, in pertinent part:(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.¶ 30 RCW 9.73.030. I cannot agree.¶ 47 Indeed, adopting the majority's reasoning, any passerby who happens upon a lost or misplaced cell phone violates the privacy act if, during the time he or she possesses the phone, the phone receives a text and the possessor happens to see the incoming message. RCW 9.73.020, which by its terms also applies after a communication has reached its destination, prohibits opening “any sealed message, letter or telegram intended for another person․” But, the legislature clearly intended this provision to apply to tangible documents, as opposed to electronic communications. Today, many, if not most, Americans use text messages to communicate with each other. The question of whether a particular communication is private is generally a question of fact, but one that may be decided as a question of law if the facts are undisputed. Roden manifested his subjective intent that the text messages would remain private by sending them to the cell phone of a personal contact. Moreover, the illicit subject matter of Roden's text messages indicates that he trusted the communication was secure and private.¶ 13 We reject the State's argument that a subjective expectation of privacy in a text message conversation is unreasonable because of the possibility that someone could intercept text messages by possessing another person's cell phone. Thus, I confine my analysis to an interpretation of section .030. Rules of statutory interpretation¶ 31 Our fundamental objective in construing a statute is to ascertain and carry out the legislature's intent. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012); State v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9–10, 43 P.3d 4 (2002). When our legislature enacted section .030, the nation was concerned with increasing use of electronic eavesdropping, wiretapping, and informers wired to record private communications. § 605(a) (“[n]o person not being authorized by the sender shall intercept any ․ communication [by wire] and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person”). “Criminal statutes must be construed in the manner in which an ordinary citizen would understand their terms.” State v.. When the legislature acted to protect private electronic communications, it adopted entirely different language, prohibiting recording and intercepting, instead of prohibiting opening sealed messages. Thus, I find the majority's letter analogy unconvincing and would instead construe section .030 as prohibiting the acquisition of private communications during transmission. Steiger, 318 F.3d 1039, 1047 (11th Cir.2003); Konop v. Airlines, Inc., 302 F.3d 868, 874 (9th Cir.2002).3. Roden did not use a group texting function, which enables text messages to be exchanged between multiple parties, or indicate in any other manner that he intended to expose his communications to anyone other than Lee. In the context of new communications technology, we have continually held that the mere possibility of intrusion will not strip citizens of their privacy rights. Young, 123 Wn.2d 173, 186, 867 P.2d 593 (1994); State v. Where statutory language is unambiguous, we give effect to the ordinary meaning of the words in the statute. P., 149 Wn.2d at 450.¶ 32 Our focus in the current case is the meaning of “intercept” within the context and purpose of RCW 9.73.030. A strict interpretation best advances the legislature's intent at the time the provision was enacted¶ 33 Our challenge in this case is to interpret a statute adopted almost 50 years ago and apply it to electronic communications devices not anticipated when the statute was passed. Thus, it appears that our legislature enacted section .030 to limit the circumstances under which electronic eavesdropping and wiretapping would be permitted. But, section .605 did not ban the use of electronic devices to surreptitiously record and transmit private conversations, and it applied only in federal court proceedings. Johnson, ––– Wn.2d ––––, 315 P.3d 1090, 1104 (2014) (Wiggins, J., dissenting); State v. CONCLUSION¶ 50 I would strictly construe section .030 and find that there was no interception because the detective viewed and responded to text messages after the texts had arrived at their intended destination—the i Phone. The House Journal reports that Representative Backstrom asked, “I have continuously offered my objections because of eavesdropping. Travis Stearns, Washington Defender Association, Seattle, WA, Amicus Curiae on behalf of Washington Defender Association. The sender addresses mail to a particular individual and reasonably expects the communication to be routed to and received by the addressee. We decline to find there was no interception here based on the fact that the messages were in electronic storage when they reached the phone—a technicality that has no relevance under our state statute. Likewise, there is no indication that the legislature intended to protect an intended recipient's ability to access a communication. Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers. Fakhoury, Electronic Frontier Foundation, San Francisco, CA, Venkat Balasubramani, Focal PLLC, Seattle, WA, Amicus Curiae on behalf of Electronic Frontier Foundation. Reading a letter addressed to another individual certainly does not render that person the intended recipient, and the ordinary meaning of “intercept” would encompass opening and reading a letter in someone else's mailbox before they receive it. WAPA calls to our attention to federal cases that exclude stored electronic and wire communications from the protection of the federal wiretap statute. Steiger, 318 F.3d 1039, 1048 (11th Cir.2003); Fraser v. Conclusion¶ 26 When the detective intercepted Roden's text messages to Lee, officers had already booked Lee into jail, and the State does not argue that exigent circumstances required a warrantless search of the phone. Ed.2d 374 (1966) (defendant who allows confidential government informant into hotel suite cannot claim Fourth Amendment protection); Osborn v. To reiterate, the statute was intended to prohibit electronic eavesdropping, where the eavesdropper overhears an ongoing communication, regardless of whether the intended recipient receives the communication. The trial court denied the suppression motion and found Roden guilty on stipulated facts.¶ 6 On appeal, Roden argued that the detective's conduct violated the privacy act. Townsend, 147 Wn.2d 666, 673, 57 P.3d 255 (2002) (internal quotation marks omitted) (quoting Kadoranian v. In determining whether a communication is private, we consider the subjective intention of the parties and may also consider other factors that bear on the reasonableness of the participants' expectations, such as the duration and subject matter of the communication, the location of the communication, and the presence of potential third parties. Text messages encompass many of the same subjects as phone conversations and e-mails, which have been protected under the act. Amicus curiae Washington Association of Prosecuting Attorneys (WAPA) cites foreign case law finding that a caller cannot claim an interception of a private communication where that caller elected to continue a phone conversation with an officer who answered a third party's phone and posed as the intended recipient of the call or as that person's accomplice. By its terms, section .030 prohibits the use of any device to intercept or record any private communication without the prior consent of all participants. And hapless is the concerned citizen who proactively sends a message to a stored contact in an effort to return the phone to its rightful owner, for he or she has almost certainly committed a misdemeanor. Fuller, 177 Wn.2d 263, 270, 300 P.3d 340 (2013) (constructions that yield unlikely, absurd, or strained consequences must be avoided).¶ 48 The majority's broad interpretation would reach activity that is not clearly covered by the statute. This provision was enacted in 1909, long before the advent of text message technology. Thus, I would affirm Roden's conviction.¶ 51 For these reasons, I dissent. The statute provides for several exceptions that are not relevant here. Yet when it comes to protecting the privacy of these messages, courts struggle to apply outdated statutes to the realities of this new technology. Bellingham Police Dep't, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992)). See Faford, 128 Wn.2d at 488; Christensen, 153 Wn.2d at 200–01; Townsend, 147 Wn.2d at 680. There are statutory exceptions to this prohibition, although none are at issue in the current case. When possible, the court derives legislative intent solely from the plain language enacted by the legislature, considering the text of the provision in question, related provisions, and the statutory scheme as a whole. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010); Dep't of Ecology v. Seed Corp., 116 Wn.2d 39, 45, 802 P.2d 1353 (1991).¶ 34 A review of the political, social, and legal atmosphere in 1967 supports the interpretation that interception occurs only during transmission of the message. I would not expect an ordinary citizen to read “intercept” as including the act of acquiring a communication after it has reached its intended destination. Moreover, section .020 refers to letters and telegrams, which are tangible objects, not digitally stored and displayed missives. For example, police and fire departments are permitted to record incoming telephone calls. It is also lawful to intercept oral communications when one party consents and an officer has obtained a court order based on probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony. Finally, interception or recording is permitted upon a finding by a judge or magistrate that there is probable cause to believe that the communication concerns enumerated criminal acts relating to controlled substances. We accepted review of another case stemming from this set of facts, and there we had occasion to consider whether a text message conversation is protected under article I, section 7 of the Washington State Constitution. I share the concern of the First, Ninth, and Eleventh Circuits about the judicial interpretation of a statute written prior to the widespread usage of a technology in a case involving purported interceptions of a communication using that technology. Privacy Litig., 329 F.3d 9, 21 (1st Cir.2003); United States v.
Klunder, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Aclu. While a caller placing a voice call hears the recipient's voice and has the opportunity to detect deception, sending a text is more like mailing a letter. The federal statute defines terms with greater technical specificity and expressly governs stored communications under separate provisions, evidencing Congress' intent to treat communications differently based on technical distinctions. Whether it is also a violation of the act to access text messages that have already been received by the intended recipient and remain in storage is not the question before us today. See Comment, Eavesdropping Orders and the Fourth Amendment, 66 Colum. There has been no congressional action since the passage of the Communications Act of 1934, and less than a dozen states have passed modern statutes attempting to deal with the use of physical surveillance technology. Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's, Part II: Balancing the Conflicting Demands of Privacy, Disclosure, and Surveillance, 66 Colum. One year later, Congress passed the wiretap act (18 U. Listening devices were becoming more available to all persons at nominal costs. Orfield, Wiretapping in Federal Criminal Cases, 42 Tex. Drew, 70 Wn.2d 793, 425 P.2d 349 (1967) (officers placed defendant and third person together in cell with hidden microphone, and through use of microphone, police learned that defendant claimed to know location of body; see also Note, Congressional Wiretapping Policy Overdue, 2 Stan. Indeed, the technology to store communications on mobile devices was largely nonexistent in 1967, making it highly unlikely, if not impossible, that the legislature could have been referring to the acquisition of electronic communications after the messages had been received and stored.
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