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Once sent, a text is not private, and police can use the words against the sender, SJC rules

The John Adams Courthouse, home to the Massachusetts Supreme Judicial Court.
The John Adams Courthouse, home to the Massachusetts Supreme Judicial Court.Lane Turner/GLOBE STAFF FILE

Senders of text messages do not have a right to privacy that would prevent law enforcement from using the contents against them in court, the Supreme Judicial Court ruled in a precedent-setting decision Tuesday.

In the 5-0 ruling, the state’s highest court extended the existing legal principle that a letter writer loses privacy rights by dropping the letter in the mail.

“There was no reasonable expectation of privacy in the sent text messages because, as with some other forms of written communication, delivery created a memorialized record of the communication that was beyond the control of the sender,” Justice Frank Gaziano wrote for the court.

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In a decision involving a traffic stop in Texas in 2016 that generated an investigative lead for Everett and State Police in a drug-trafficking case, the court held that the right to privacy found in the US Constitution and Article 14 of the state Constitution expires with the transmission.

“The fact that individuals communicate personally revealing thoughts, feelings, and facts via text message rather than through another medium does not alter the analysis of whether they retained a reasonable expectation of privacy in those communications,” Gaziano wrote.

Other courts “uniformly have concluded that the Fourth Amendment does not protect similar text messages.”

The court said the case marked the first time it had addressed privacy rights for senders of text messages.

“The question [of] whether an individual has a reasonable expectation of privacy in sent text messages acquired from another’s cellular telephone is a matter of first impression in the Commonwealth, and the United States Supreme Court has provided no explicit guidance on the issue,” Gaziano wrote.

The court said its conclusion was informed by current technology. Anyone who receives a text message, Gaziano wrote, can share it directly with thousands of people, even more by posting it to the Internet.

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“Any purported expectation of privacy in sent text messages of this type is significantly undermined by the ease with which these messages can be shared with others,” Gaziano wrote. “A recipient . . . can forward the contents of the message to hundreds or thousands of people at once, or post a message on social media for anyone with an Internet connection to view.”

The ruling came in the case of Jorge Delgado-Rivera, a Melrose resident who is facing drug-trafficking and money laundering charges in Middlesex Superior Court.

Delgado-Rivera and five other people have been charged in the case. He has pleaded not guilty to all charges. He is free on $5,000 bail and is required to wear a GPS monitoring bracelet. He was first charged in 2017 and held on $75,000 cash bail for nearly two years, court records show.

Delgado-Rivera was linked to an alleged drug ring based on a text message a Texas police officer found on Leonel Garcia-Castaneda’s cellphone in 2016, the court said in its ruling. Garcia-Castaneda was not charged with any crime in Texas and is not accused of participating in the ring with Delgado-Rivera, according to the SJC and court records.

The text message, which identified the sender as “Bora,” was from a Massachusetts-based telephone number and described moving illegal drugs and money around to members of the drug ring, authorities allege.

Middlesex Superior Court Judge Shannon Frisson sided with Delgado-Rivera and threw out the evidence discovered through the text messages between the two men. Middlesex District Attorney Marian Ryan’s office appealed the ruling to the high court, which reversed Frisson’s decision and allowed Ryan’s office to use the information in the pending trial of Delgado-Rivera.

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“Delgado-Rivera assumed the risk that the communications he shared with Garcia‑Castaneda might be made accessible to others, including law enforcement,”

In a footnote, the SJC said the ruling is focused only on text messages exchanged using standard technology and did not address the privacy issue raised when masking technology is used.

“For example, a defendant could send a text message using an encrypted messaging service, where the message subsequently was acquired from the recipient device by law enforcement,” Gaziano wrote. “While the use of such applications, or similar efforts to enhance the privacy or security of the messages at issue, likely would be relevant to the extent that it reveals a defendant’s efforts to protect his or her privacy, we leave [the issue for] another day.”



John R. Ellement can be reached at john.ellement@globe.com. Follow him on Twitter @JREbosglobe.