'Text Messages Are Property: Why You Don’t Own Your Text Messages, but It’d Be a Lot Cooler if You Did' by Spence M. Howden in (2019) 76(2)
Washington and Lee Law Review comments
This Note proceeds as follows: Part II offers a brief overview of what text messages are and what they are not. Part III covers the history of intangible personal property law and reviews the evolution of “cybertrespass” claims. Part IV explores the judiciary and the Fourth Amendment’s failure to protect text messages. Finally, Part V evaluates whether text messages constitute property and the practical implications of this finding.
Howden argues
Consider this scenario: an automatic Apple iPhone update deletes all of Jane’s text messages. Jane’s iPhone is wiped clean, and there is nothing she can do to get her text messages back. Apple will quickly send out a carefully crafted apology, which subtly points out that Jane accepted the risk of this happening due to some obscure provision in their terms of service she never read. This rings hollow, though, because Jane still feels like she lost something of value, something she owned. Even though they were just words on a screen, Jane’s text messages were a little bit more than that to her—they felt like a part of who Jane is and who she was.
These text messages were more than just data and binary code. They contained Jane’s personal information and correspondence with friends and family over the years. To Jane, those virtual text messages felt like her property; she had created the outgoing messages and received the incoming messages. Even if she clicked away her right to pursue contractual remedies by accepting Apple’s terms of service, is there anything Jane can do?
As of today, the answer is a resounding “no.” Jane would be surprised to learn that she cannot successfully sue Apple for deleting her text messages because her text messages are not considered personal property. Because text messages are not a “property,” she would not be able to successfully bring a conversion or trespass claim, despite the elements of both claims being met. Instead, Jane would be limited to a breach of contract claim, limiting her chances of redress for Apple’s deletion of something that feels like her personal property.
Therein lies the problem: courts do not treat text messages as intangible personal property. Authors and recipients of text messages have limited recourse against cell phone manufacturers or service providers when they “accidentally” delete their users’ text messages. Instead, courts consider text messages to be the product of the contract for services between the cell phone user and the cell phone provider. Put another way, because text messages would not exist but-for a cellular service contract, they are not considered property. Under this “contractually created right” theory, text message users can bring an action for a breach of contract when their text messages are improperly deleted, but that’s about it. Should courts treat text messages as a purely contractual right, or should text messages constitute intangible personal property capable of being owned?
This Note argues that text messages are intangible personal property. This leads to two practical outcomes. First, text message “owners” can successfully sue using property-based causes of action (e.g., trespass to chattels and conversion) when their ownership rights over their text messages are disturbed by the service provider or cell phone manufacturer. Second, the property rights inherent in text messages will limit the government’s power under the third-party doctrine.
This Note proceeds as follows: Part II offers a brief overview of what text messages are and what they are not. Part III covers the history of intangible personal property law and reviews the evolution of “cybertrespass” claims. Part IV explores the judiciary and the Fourth Amendment’s failure to protect text messages. Finally, Part V evaluates whether text messages constitute property and the practical implications of this finding.
