Sexy Texts and Privacy - Technologist
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Sexy Texts and Privacy

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

We now live in an online world where words like "tweeting" and "defriending" are the new coin of the vocabulary realm. How about sexy texts also known as "sexting"? What is the importance of personal sexy texts and privacy?

Indeed, sexting, the practice of people texting nude photos of themselves, has raised recent legal privacy concerns. The primary question at stake is whether high school students have a privacy right to nude images that have been sexted and are located on their cell phones.

The ACLU and a private law firm have been seeking to establish this privacy point in legal proceedings in Pennsylvania. They argue that while school officials under certain circumstances can confiscate the cell phones of students, they cannot invade privacy by looking at the content of what is contained on the cell phones. They emphasize that cell phones now are repositories of some of the most private data of individuals, including text messages, contact lists, photos and even videos. As a result, cell phones should not be searched absent "reasonable suspicion."

In terms of background, the lawsuit involves a female student who has launched a constitutional attack based on the taking of her cell phone by high school officials, the viewing of nude images of herself on the phone, and the provision of the phone to prosecutors. In a previous case, several students at the same school obtained injunctive relief preventing them from being prosecuted for child pornography based on nude photos contained in their cell phones.  

In the current case, the female student argues that the nude photos on her phone were only intended for viewing by herself and possibly her boyfriend and that they should not have been looked at by school officials and prosecutors. As a result of their review, the student apparently was informed that she could avoid prosecution if she participated in a course on violence and victimization. The student did agree to take the course, but by her lawsuit, she obviously believes that her constitutional rights were violated.

It is true that very personal and even intimate information can be contained on hand held devices like cell phones. This may be particularly true for young people, as they seem to live their lives through their gadgets. Is it reasonable to expect that materials contained on cell phones are entitled to a reasonable expectation of privacy? Perhaps that depends on the person involved.  One person may make best efforts to ensure that others do not view the content on her phone, including requiring a secret password to open usable access to the phone. Another person may leave her cell phone around without password protection for almost anyone to view its contents.

Of course, at the end of the day, some care and education should be provided to the young in terms of how they use their electronic devices and what they store on those devices.  If someone does not want to have nude images of their body viewed by others, it may be prudent not to have those images contained on a cell phone that could be potentially viewed by others. Still, there certainly is an argument that the contents of the cell phone of someone else should not be viewed by others absent some sort of compelling and substantial reason. 

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Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP(http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes.  His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com.  To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice.  The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.