Text Messages Are Property: Why You Don’t Own Your Text Messages, but It’d Be a Lot Cooler if You Did

Washington and Lee Law Review Washington and Lee Law Review

Volume 76 Issue 2 Article 9

6-19-2019

Text Messages Are Property: Why You Don’t Own Your Text Text Messages Are Property: Why You Don’t Own Your Text

Messages, but It’d Be a Lot Cooler if You Did Messages, but It’d Be a Lot Cooler if You Did

Spence M. Howden

Washington and Lee University School of Law

, howden.s@law.wlu.edu

Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr

Part of the Computer Law Commons, Fourth Amendment Commons, Property Law and Real Estate

Commons, and the Science and Technology Law Commons

Recommended Citation Recommended Citation

Spence M. Howden,

Text Messages Are Property: Why You Don’t Own Your Text Messages, but

It’d Be a Lot Cooler if You Did

, 76 Wash. & Lee L. Rev. 1073 (2019).

Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol76/iss2/9

This Note is brought to you for free and open access by the Washington and Lee Law Review at Washington and

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1073

Text Messages Are Property: Why You

Don’t Own Your Text Messages, but It’d

Be a Lot Cooler if You Did

Spence Howden

Table of Contents

I. Introduction .................................................................... 1074

II. Text Messages: An Overview ......................................... 1076

A. Text Messages Are Not Physical Property nor

Are They Protected by Copyright ........................... 1077

B. Are Text Messages Distinguishable from E-Mails? 1079

III. The History of Intangible Property Law and

Cybertrespass ................................................................. 1081

A. The Intangible Personal Property Theory: Digital

Assets Can Be Owned .............................................. 1082

B. The Contractually Created Right Theory: Digital

Assets Cannot e be Owned ...................................... 1085

C. Comparing the Intangible Property Theory to

the Contractually Created Right Theory ................ 1088

D. The Evolution of Cybertrespass .............................. 1091

IV. The Law Does Not Protect Text Messages ................... 1095

A. The Judiciary Does Not Protect Text Messages:

The Message Litigation .......................................... 1095

1. Does Withholding Text Messages Amount to

Tortious Interference with Contract? ............... 1097

2. Can Apple Intercept Text Messages Under the

Wiretap Act? ....................................................... 1101

* J.D. Candidate May 2019, Washington and Lee University School of

Law. I am grateful to Professor Fairfield for contributing his insight and expertise

on this topic. Thanks to the editorial board, Chris, Matt, James, and my mom for

their guidance and edits. This Note would not have been possible without the

unending support of my family and my wonderful girlfriend, Elizabeth. Finally, I

thank Mr. Cruz, for teaching me in ninth-grade English that writing was cool.

1074 76 WASH. & LEE L. REV. 1073 (2019)

B. The Fourth Amendment Does Not Protect Text

Messages: The Third-Party Loophole ..................... 1108

V. The Solution is Property Law ........................................ 1113

A. Text Messages Are Property ................................... 1113

B. Why The iMessage Plaintiffs Should Have

Succeeded ................................................................. 1115

1. As Property, Text Messages Can Be Converted

or Trespassed Upon ........................................... 1116

2. The Final Step: Class Certification ................... 1119

C. Why the Third-Party Loophole Will Begin to

Close ......................................................................... 1121

VI. Conclusion ...................................................................... 1125

I. Introduction

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

1. Infra Part IV.A.

TEXT MESSAGES ARE PROPERTY 1075

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.

2. Infra Part V.A.2.

3. Infra Part IV.A.1.

1076 76 WASH. & LEE L. REV. 1073 (2019)

II. Text Messages: An Overview

Text messaging (or texting) is a text-based form of

communication between cell phone users.

Text messages, as an

alternative to e-mails and phone calls,

are the predominant form

of communication in society.

The broad term “text messages”

encompasses text-only messages sent via Short Messages Service

(SMS), picture, video and sound messages (multimedia messages

or MMS), and messages sent through third-party messenger

applications such as iMessage.

SMS and MMS messages are

transmitted from the sender’s cell phone to an SMS tower, which

then sends the messages to the cell phone service provider’s tower,

which then dispatches the text message to the recipient’s cell

phone.

Messenger applications use cellular provider data

networks to send text and multimedia messages between mobile

phone users who possess the same messenger application

downloaded on their phones.

Cell phones are so ingrained in American culture that “[n]o

one ever leaves the house these days without three things: their

keys, wallet and mobile [device]. It is, in short, an essential

lifestyle accessory.”

Ninety-five percent of American adults own

4. See Moore v. Apple, Inc., 309 F.R.D. 532, 536 (N.D. Cal. 2015) (defining

text messaging).

5. See In re Text Messaging Antitrust Litig., 782 F.3d 867, 869 (7th Cir.

2015) (“Text messaging is thus an alternative both to email and to telephone

calls.”).

6. See State v. Hinton, 280 P.3d 476, 490 (Wash. Ct. App. 2012) (discussing

the societal shift in Americans’ private communications methods from phone calls

and letters to text messaging).

7. See Moore, 309 F.R.D. at 536 (“Texting originally only referred to

messages sent using the Short Messages Service (‘SMS’), but now also

encompasses messages containing media such as pictures, videos, and sounds

(‘MMS’).”).

8. See id. (explaining the route SMS and MMS messages take from the

sender’s mobile phone to the receiver’s mobile phone).

9. See id. (distinguishing iMessage and other messenger services from SMS

and MMS messages).

10. Anthony Patterson, Digital Youth, Mobile Phones and Text Messaging:

Assessing the Profound Impact of a Technological Afterthought, in T

ROUTLEDGE COMPANION TO DIGITAL CONSUMPTION 83 (Russell W. Belk & Rosa

Llamas eds., 2013).

TEXT MESSAGES ARE PROPERTY 1077

a cell phone.

Nearly three-quarters of American adults who own

cell phones send and receive text messages.

Text messaging

users, on average, send or receive more than forty-one messages

daily, while cell phone owners make or receive an average of ten

phone calls daily.

In short, most Americans own cell phones, and

Americans use their cell phones to text message more often than

they do to make phone calls or send e-mails.

Although the majority of this Note concerns what text

messages are, it is helpful to narrow the issue’s scope and briefly

explain what text messages are not. Text messages are not

physical or tangible objects.

Text messages are not copyrightable

and thus not protected by intellectual property law.

And text

messages are not e-mails.

A. Text Messages Are Not Physical Property nor Are They

Protected by Copyright

At the outset, it is important to distinguish the intangible data

and text messages contained within the cell phone from the

physical, tangible cell phone object. For example, during an arrest,

the police can search the exterior of a cell phone, but they are

barred from searching the data housed in the phone.

Internal cell

phone data, contained within a “smart” object, carries greater

constitutional protections than objects held within “simple”

11. See Mobile Fact Sheet, PEW RES. CTR. (Jan. 12, 2017),

http://www.pewinternet.org/fact-sheet/mobile/ (last visited Mar. 19, 2019)

(detailing trends in mobile phone ownership over time) (on file with the

Washington and Lee Law Review).

12. See Aaron Smith, Americans and Text Messaging, P

EW RES. CTR. (Sept.

19, 2011), http://www.pewinternet.org/2011/09/19/americans-and-text-

messaging/ (last visited Mar. 19, 2019) (describing trends in text message usage

among Americans over time) (on file with the Washington and Lee Law Review).

13. Id.

14. Infra Part II.A.

15. Infra Part II.A.

16. Infra Part II.B.

17. See Andrew Guthrie Ferguson, The Internet of Things and the Fourth

Amendment of Effects, 104 C

AL. L. REV. 805, 833–34 (2016) (“The physical object

(the phone) could be searched to ensure, for example, that a razor blade was not

hidden inside, but the digital content could not be searched without a warrant.”).

1078 76 WASH. & LEE L. REV. 1073 (2019)

containers.

Additionally, although a cell phone owner owns the

physical device itself, the owner does not own the software

contained within, as cell phone providers license (rather than sell)

the software to the cell phone owner for their use.

Just as there is a distinction between the ownership of the

physical phone and the data and software within, there is also a

distinction between owning the copyright to the contents of a text

message and owning a copy of the text message itself. This is the

“copy/copyright” distinction. In relevant part, the Copyright Act

states that “[o]wnership of a copyright, or of any of the exclusive

rights under a copyright, is distinct from ownership of any material

object in which the work is embodied.”

The copy/copyright

distinction is crucial when establishing ownership rights held in

an intangible property such as a text message,

and

understanding the copy/copyright distinction is necessary for this

reason: intellectual property law governs copyrights, but property

law governs ownership rights in the underlying material “copy” or

object itself.

The ownership of a copyright to the content of a given text

message hinges on the length of the text message.

If a text

message is short, as most text messages tend to be, the author does

18. See id. at 834 (“[T]he Court implicitly creates a distinction between

simple objects and smart objects (with data inside), with the latter being granted

additional protection.”).

19. See Aaron Perzanowski & Jason Schultz, Reconciling Intellectual and

Personal Property, 90 N

OTRE DAME L. REV. 1211, 1253–60 (2015) (explaining that

the majority of courts classify software transactions as licenses instead of sales).

20. 17 U.S.C. § 202 (2012).

21. See id. (distinguishing ownership of a copyright from ownership of an

object).

22. See Perzanowski & Schultz, supra note 19, at 1216 (“The exhaustion

principle, though historically associated with a clear distinction between copy and

indistinct line separating the copy and the work.”).

23. See 17 U.S.C. § 202 (distinguishing ownership of a copyright from

ownership of an object).

24. See Edina Harbinja, Legal Nature of Emails: A Comparative Perspective,

DUKE L. & TECH. REV. 227, 235–36 (2016) (“To conclude, despite long emails

meeting the requirement of originality and fixation, there would be a regulatory

vacuum for a significant number of short emails.”).

TEXT MESSAGES ARE PROPERTY 1079

not hold the copyright to the content of that message.

However,

the author likely has copyright protection over the content of the

text message if the text message is lengthy and more complex, an

“original work of authorship,” and is “electronically fixated.”

Even though copyright law might protect some text messages,

and does not protect the text message recipient.

Thus, because

recipients, property law should fill the needed gap and give text

message owners the rights against intrusive cellular service

providers to which they are entitled.

B. Are Text Messages Distinguishable from E-Mails?

The distinction between text messages and e-mails is subtle,

but there are some fundamental differences between the two.

particular, text messages are distinguishable from e-mails both in

how society uses text messages to communicate and in how text

messages mechanically operate.

While both the judiciary and the legal academy have

addressed the status of e-mails as “property,” the same question

regarding text messages has gone unanswered.

Most

25. U.S. COPYRIGHT OFFICE, MULTIPLE WORKS 2 (2019),

https://www.copyright.gov/circs/circ34.pdf.

26. See Harbinja, supra note 24, at 235 (explaining that longer e-mails meet

the originality and fixation copyright requirements).

27. Id.

28. See Joseph C. Vitale, Note, Text Me, Maybe?: State v. Hinton and the

Possibility of Fourth Amendment Protections Over Sent Text Messages Stored in

Another’s Cell Phone, 58 S

T. LOUIS U. L.J. 1109, 1141 (2014) (arguing that text

messages differ from e-mails because of the different ways society utilizes the

technologies).

29. See id. at 1140–41 (distinguishing text messages from e-mails);

Katharine M. O’Connor, Note, :o OMG They Searched My Txts: Unraveling the

Search and Seizure of Text Messages, 2010 U.

ILL. L. REV. 685, 686 (“[T]ext

messages, unlike letters or e-mails, have in the past only been generally

accessible through a mobile device.”).

30. See, e.g., Porters Bldg. Ctrs., Inc. v. Sprint Lumber, No.

16-06055-CV-SJ-ODS, 2017 WL 4413288, at *11 (W.D. Mo. Oct. 2, 2017)

(determining that e-mails constitute intangible personal property); infra note 31

(collecting legal scholarship that addresses the question of whether e-mail is

property).

1080 76 WASH. & LEE L. REV. 1073 (2019)

commentators who have addressed the issue with regard to e-mails

advocate for the treatment of e-mails as property.

Courts routinely consider whether e-mails constitute

descendible intangible personal property in the probate context

(and often find that they are property in probate cases), but courts

do not consider whether text messages constitute property with the

same regularity.

And the recent surge of federal district courts

concluding that e-mails constitute intangible property indicates

that the first “text messages are property” case could be right

around the corner.

The ever-increasing popularity of text

messages likely signals that courts will have to tackle the issue of

whether text messages constitute property in the coming years.

What someone might have sent via e-mail ten years ago is sent via

text message today, and thus issues regarding text message

ownership will become more and more common.

31. See, e.g., Jennifer Arner, Comment, Looking Forward by Looking

Backward: United States v. Jones Predicts Fourth Amendment Property Rights

Protections in E-mail, 24 G

EO. MASON U. C.R.L.J. 349, 379 (Summer 2014) (“[I]f

the Court is willing to recognize true property rights in particular forms of

electronic communication, the property-centered approach relied on in Jones will

afford bright-line protections for these intangible interests.”); Justin Atwater,

Who Owns E-Mail? Do You Have the Right to Decide the Disposition of Your

Private Digital Life?, 2006 U

TAH L. REV. 397, 418 (“Although e-mail shares

qualities with both tangible and intangible property, the differences create

enough of a distinction that the laws of property cannot effectively deal with who

owns e-mail.”); Jonathan J. Darrow & Gerald R. Ferrera, Who Owns a Decedent’s

Emails: Inheritable Probate Assets or Property of the Network?, 10 N.Y.U.

J. LEGIS.

& PUB. POL’Y 281, 319 (2007) (“The ownership and intellectual property interests

authors have in their electronically stored e-mail accounts are no less legitimate

than are such interests in messages created with paper and pen.”). But see

Harbinja, supra note 24, at 254

(“Based upon current copyright and property law,

and upon the western theories of property, the legal nature of email appears clear.

Email content is not the property of its users.”).

32. See, e.g., Atwater, supra note 31, at 400–02 (discussing how a probate

court forced Yahoo! to hand over a deceased marine’s e-mails to his parents).

33. Infra notes 118–126 and accompanying text.

34. See Moore v. Apple Inc., 309 F.R.D. 532, 536 (N.D. Cal. 2015) (explaining

how text messaging has become “the most widely used mobile data service”).

35. See Lydia Dishman, Texting Is The New Email—Does Your Company Do

It Right?, F

AST COMPANY (May 30, 2013),

https://www.fastcompany.com/3010237/texting-is-the-new-email-does-your-

company-do-it-right (last visited Mar. 22, 2019) (“[T]exting—to the tune of 9.8

trillion sent in 2012—is becoming the new medium through which companies

TEXT MESSAGES ARE PROPERTY 1081

III. The History of Intangible Property Law and Cybertrespass

Intangible personal property, as its name suggests, is a

personal property or a “chattel” that cannot be physically

touched.

Text messages are a form of “digital” property, which is

arguably a type of intangible personal property.

Courts are split

on whether disrupting possession of someone’s intangible property

is equivalent to disrupting possession of physical property, or,

instead, breaching a contractually created right.

If a court treats

a dispute over theft of intangible property as a dispute over

personal property, the aggrieved party can pursue a conversion or

trespass to chattels tort claim for the disruption of their intangible

property rights.

However, if a court treats the same dispute as a

potential breach of a contractually created right, the aggrieved

party cannot bring a tort law cause of action and is limited to

contractual remedies.

The principal cases involving disputes over the property status

of intangible personal property concerned perhaps the earliest

widely available digital asset: internet domain names.

These

cases determined whether a domain name was a type of property,

and if it was, whether the aggrieved party could pursue a

traditional property-based claim against the domain name

communicate.”) (on file with the Washington and Lee Law Review).

36. See Intangible Personal Property, I

NVESTOPEDIA,

https://www.investopedia.com/terms/i/intangible-personal-property.asp (last

updated Feb. 12, 2018) (last visited Mar. 19, 2019) (“Intangible personal property

is something of individual value that cannot be touched or held.”) (on file with the

Washington and Lee Law Review).

37. Id.

38. See Kremen v. Cohen, 337 F.3d 1024, 1029–36 (9th Cir. 2003) (finding

that the taking of an intangible property provided the basis for a property law

conversion claim). But see Network Sols., Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80,

85–88 (Va. 2000) (finding that the taking of an intangible property disrupted a

contractual, and not a property, right).

39. See Kremen, 337 F.3d at 1029–36 (determining that the defendant’s

giving away of the plaintiff’s intangible property without his consent “supported

a claim for conversion”).

40. See Umbro, 529 S.E.2d at 85–88 (explaining that a domain name,

although an intangible property, is the product of a service contract that does not

exist separate from the service that created it and is therefore a contractually

created right).

41. Infra Part III.A–B.

1082 76 WASH. & LEE L. REV. 1073 (2019)

registrar.

To be sure, text messages are not domain names, but

both text messages and domain names arguably constitute forms

of intangible personal property.

Accordingly, the courts’

reasoning in the domain name cases applies to situations involving

other intangible personal properties, such as text messages.

This Part, in subparts A and B, proceeds by analyzing the two

leading cases for and against the theory that digital property

constitutes intangible personal property. Then, subpart C

contrasts these two cases and explores what drove the courts to

come out on opposite sides of the issue. Finally, subpart D tracks

the evolution of property law tort remedies as applied to digital

property and examines recent federal court cases determining that

e-mails constitute property.

A. The Intangible Personal Property Theory: Digital Assets Can

Be Owned

Enter Kremen v. Cohen.

Kremen involved a California

plaintiff, Gary Kremen, who sought conversion damages from a

defendant who stole Kremen’s internet domain name.

Kremen

bought the domain name “sex.com” through a domain name

registrar.

Shortly thereafter, a con man named Stephen Cohen

duped the domain name registrar into transferring possession of

Kremen’s sex.com domain name to Cohen’s account.

Kremen

then sued Cohen and the domain name registrar, claiming that the

tort of conversion applied to Cohen’s stealing Kremen’s sex.com

domain name.

42. Infra Part III.A–B.

43. Infra Part V.A.

44. Infra Part V.A.

45. 337 F.3d 1024 (9th Cir. 2003).

46. See id. at 1026 (“We decide whether Network Solutions may be liable for

giving away a registrant’s domain name on the basis of a forged letter.”).

47. Id.

48. Id. at 1027.

49. See id. at 1028 (“His third theory is that he has a property right in the

domain name sex.com, and Network Solutions committed the tort of conversion

by giving it away to Cohen.”).

TEXT MESSAGES ARE PROPERTY 1083

Before Kremen could prove the tort of conversion, he first had

to prove that the domain name Cohen took constituted a piece of

property.

The Ninth Circuit defines property as a “broad concept

that includes every intangible benefit and prerogative susceptible

of possession or disposition.”

Under the court’s three-part test, a

digital asset constitutes personal property if: (1) there is “an

interest capable of precise definition”; (2) it is “capable of exclusive

possession or control”; and (3) there is a “legitimate claim to

exclusivity.”

The Ninth Circuit found that domain names satisfied each

criterion required under the three-part property test.

First, the

court explained that domain names are capable of precise

definition because the person who registers the domain name

chooses exactly where on the internet those who type that

particular domain name are sent.

Second, the court noted that

domain names are capable of exclusive possession or control

because the registrant alone decides on what the domain name will

be.

Finally, the court reasoned that there is a legitimate claim to

exclusivity with regard to domain names, because registering a

domain name is a way of communicating sole ownership of the

internet domain to others, ensuring registrants gain a benefit on

their time and money spent developing their websites, and

encouraging investment in domain names and the internet

overall.

50. See id. 1029–30 (explaining that Kremen must first establish that he had

a property right in the domain name before he can make a conversion tort claim).

51. Id. at 1030.

52. Id.

53. See id. (finding that “Kremen therefore had an intangible property right

in his domain name”).

54. See id. (“Like a share of corporate stock or a plot of land, a domain name

is a well-defined interest.”).

55. See id. (“Ownership is exclusive in that the registrant alone makes that

decision.”).

56. See id. at 1030

Registrants have a legitimate claim to exclusivity. Registering a

domain name is like staking a claim to a plot of land at the title office.

It informs others that the domain name is the registrant’s and no one

else’s. Many registrants also invest substantial time and money to

develop and promote websites that depend on their domain names.

1084 76 WASH. & LEE L. REV. 1073 (2019)

After determining that Kremen owned property rights to his

domain name, the court analyzed whether the tort of conversion

applied to disputes regarding intangible property.

Historically,

intangible property conversion claims required that a document

exist where the intangible rights are merged into the physical

document.

This means that there is a physical document that

represents and is equivalent to the intangible obligation (e.g., a

stock certificate representing ownership of a share of stock).

However, the court explained that courts in California had rejected

the strict merger requirement. But, even if the merger

requirement applied, it was minimal and required only some

relationship with a tangible object.

The court reasoned that

Kremen’s sex.com domain name digital file must be stored within

a physical computer associated with the domain name provider

somewhere, and found that this connection was sufficient to satisfy

conversion’s merger requirement.

This finding, coupled with the court’s determination that

Kremen had a property right in his domain name, led the court to

conclude that Kremen brought a viable conversion claim.

closing, the court justified its conclusion by noting that “the

57. See id. at 1029 (“To establish that tort, a plaintiff must show ‘ownership

or right to possession of property, wrongful disposition of the property right and

damages.’” (quoting G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc.,

958 F.2d 896, 906 (9th Cir. 1992))).

58. See id. at 1031

An intangible is “merged” in a document when, “by the appropriate rule

of law, the right to the immediate possession of a chattel and the power

to acquire such possession is represented by [the] document,” or when

“an intangible obligation [is] represented by [the] document, which is

regarded as equivalent to the obligation.”

(quoting R

ESTATEMENT (SECOND) OF TORTS § 242 cmt. a (AM. LAW INST. 1965)).

59. Id.

60. See id. at 1033 (“Assuming arguendo that California retains some

vestigial merger requirement, it is clearly minimal, and at most requires only

some connection to a document or tangible object—not representation of the

owner’s intangible interest in the strict Restatement sense.” (emphasis in

original)).

61. See id. at 1033–34 (“We agree that the [domain name database] is a

document (or perhaps more accurately a collection of documents). . . . That it is

stored in electronic form rather than on ink and paper is immaterial.”).

62. See id. at 1036 (“The evidence supported a claim for conversion.”).

TEXT MESSAGES ARE PROPERTY 1085

common law does not stand idle while the people give away the

property of others.”

B. The Contractually Created Right Theory: Digital Assets Cannot

Be Owned

Just as Kremen stands for the proposition that domain names

are property, Network Solutions, Inc. v. Umbro International,

Inc.

represents the legal theory that domain names are not

property.

In Umbro, plaintiff Umbro International, Inc. (Umbro)

sought to garnish thirty-eight domain names held by defendant

Network Solutions, Inc. (NSI).

Umbro previously obtained a

judgment against a debtor in an unrelated bankruptcy action, and

thereafter instituted this garnishment proceeding against NSI to

collect on the debtor’s domain names held by NSI.

Umbro sought

a court order requiring NSI to begin the process of preparing the

domain names for a sheriff’s sale.

NSI responded to Umbro’s

lawsuit by claiming that it did not own any of the debtor’s

property.

NSI argued that the domain names were contractually

created rights, which arose from NSI’s contractual relationship

with the debtor; thus, the domain names were not property capable

of garnishment.

The Supreme Court of Virginia agreed with NSI and

determined that the intangible domain names were created solely

because of a contractual relationship, and, thus, incapable of

63. Id.

64. 529 S.E.2d 80 (Va. 2000).

65. See Milton L. Mueller & Farzaneh Badiei, Governing Internet Territory:

ICANN, Sovereignty Claims, Property Rights and Country Code Top-Level

Domains, 18 C

OLUM. SCI. & TECH. L. REV. 435, 475 (2017) (explaining that Umbro

has become one of the “most commonly cited” cases to prove that domain names

are service contracts).

66. See Network Sols. Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 81 (Va. 2000)

(“In this case of first impression, we address the issue whether a contractual right

to use an Internet domain name can be garnished.”).

67. Id.

68. Id.

69. Id.

70. Id.

1086 76 WASH. & LEE L. REV. 1073 (2019)

garnishment.

Because the debtor’s rights to the domain names

did not exist “separate and apart from” NSI’s services to the debtor,

the court deemed the domain names the but-for product of a

contract.

Although the court agreed that the registrant gained

the right to use the domain names upon registration, the right to

use the domain names was “inextricably linked” to NSI’s services.

Therefore, because garnishment proceedings are limited to

liabilities owed, and service contracts are not within the statutory

definition of the term “liabilities,” the court reasoned that Umbro

could not garnish NSI’s domain names.

Umbro stands for the proposition that domain names, and

intangible property generally, are the product of a contract

between the digital asset user and the digital asset provider.

Remarkably, NSI itself acknowledged and conceded that domain

names constitute an intangible property during oral argument.

Although the court briefly analyzed the “contractually created

right” versus “intangible property” argument, it dismissed NSI’s

oral argument concession and explained that classifying domain

names as a type of property was not dispositive of the case.

The

71. See id. at 86 (“A contract for services is not ‘a liability’ as that term is

used in § 8.01–511 and hence is not subject to garnishment.”).

72. See id. (“[W]hatever contractual rights the judgment debtor has in the

domain names at issue in this appeal, those rights do not exist separate and apart

from NSI’s services. Therefore . . . a domain name registration is the product of a

contract for services between the registrar and registrant.”).

73. See id. (“[W]e agree with Umbro that a domain name registrant acquires

the contractual right to use a unique domain name for a specified period of time.

However, that contractual right is inextricably bound to the domain name

services that NSI provides.”).

74. See id. (“[A] contract for services is not ‘a liability’ as that term is used in

§ 8.01–511 and hence is not subject to garnishment.”).

75. See Mueller & Badiei, supra note 65, at 475

(explaining why Umbro has

become “one of the cases most commonly cited to prove that domain names are

services”).

76. See Umbro, 529 S.E.2d at 86 (“[W]e must point out that NSI

acknowledged during oral argument before this Court that the right to use a

domain name is a form of intangible personal property.”).

77. See id. at 770 (“However, NSI’s acknowledgement is not dispositive of

this appeal. Likewise, we do not believe that it is essential to the outcome of this

case to decide whether the circuit court correctly characterized a domain name as

a ‘form of intellectual property.’”).

TEXT MESSAGES ARE PROPERTY 1087

court made clear that it did not garnish NSI’s domain names

because it feared that doing so would make practically any service

contract garnishable.

The Umbro case garnered a significant amount of criticism not

for its holding, but for what the court failed to address.

Although

Kremen plainly stands for the proposition that property rights

exist in domain names,

Umbro’s substantive holding is not that

domain names are contractually created rights.

The only legal

conclusion Umbro drew is that domain names do not fall within

the definition of “liability” as an element of the Virginia

garnishment statute.

The court in Umbro briefly discussed only

the property status of domain names in dicta when noting that NSI

conceded that domain names were intangible property at oral

argument.

Even though Umbro casually observed that a domain

name represented a contractual right, the court never explicitly

stated that domain names are not intangible property.

The court

in Umbro even attempted to back away from making any definitive

statements regarding domain name property rights (or lack

78. See id. at 771 (“If we allow the garnishment of NSI’s services in this case

because those services create a contractual right to use a domain name, we believe

that practically any service would be garnishable.”).

79. See Juliet M. Moringiello, Seizing Domain Names to Enforce Judgments:

Looking Back to Look to the Future, 72 U.

CIN. L. REV. 95, 97, 108 (2003) (calling

Umbro a “red herring” case because it did not expressly hold that a domain name

is not property).

80. See Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2003) (“Kremen

therefore had an intangible property right in his domain name . . . .”).

81. See Daniel Hancock, Note, You Can Have It, But Can You Hold It?:

Treating Domain Names as Tangible Property, 99 K

Y. L.J. 185, 192–93 (2011)

(“Umbro is often cited for the proposition that a domain name is simply a

contractual arrangement and therefore cannot be a property right. This assertion

is a misreading of the case.”).

82. See Moringiello, supra note 79, at 108 (“The court simply said that a

domain name did not constitute a ‘liability’ for the purpose of the Virginia

garnishment statute.”).

83. See Network Sols., Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000)

(“Initially, we must point out that NSI acknowledged during oral argument before

this Court that the right to use a domain name is a form of intangible personal

property.”).

84. See id. at 770 (“[W]e agree with Umbro that a domain name registrant

acquires the contractual right to use a unique domain name for a specified period

of time.”).

1088 76 WASH. & LEE L. REV. 1073 (2019)

thereof), noting that whether or not domain names constitute

intangible property was not essential to the outcome of the case.

C. Comparing the Intangible Property Theory to the Contractually

Created Right Theory

Kremen and Umbro represent the two prevailing views on

digital property’s status as either intangible property or a contract

for services.

The Ninth Circuit’s opinion in the Kremen case

stands for the theory that a digital asset is an intangible property

owned by the user.

And although the Supreme Court of Virginia

in Umbro never explicitly said so, the Umbro case stands for the

theory that a digital asset is the product of a contract entered into

between a user and a digital asset provider.

Kremen and Umbro’s different outcomes are better understood

when comparing the two distinguishing factors that led to their

contrasting outcomes: (1) the unique parties to each case and

(2) the different laws applied in each case. Kremen involved

sympathetic plaintiff Gary Kremen, a “geek-turned-entrepreneur”

who thought he hit the jackpot when he became the “proud owner”

of sex.com (implying from the outset that domain names could be

owned as property).

Kremen, unable to collect any of his initial

$65 million judgment against domain thief Stephen Cohen (on

account of Cohen fleeing the country), sued the deep-pocketed

domain name provider responsible for carelessly transferring his

domain to Cohen.

85. See id. (“[W]e do not believe that it is essential to the outcome of this case

to decide whether the circuit court correctly characterized a domain name as a

form of ‘intellectual property.’”).

86. See Mueller & Badiei, supra note 65, at 472–73 (describing the property

status of domain names as “less than settled” after twenty years of debate).

87. See Hancock, supra note 81, at 194–95 (calling the Kremen case

illustrative of the view the domain names are intangible property).

88. See id. at 191–92 (explaining that Umbro represents the view that

domain names are primarily contractual rights).

89. See Kremen, 337 F.3d at 1026–28 (describing Gary Kremen as computer

geek who beat the hordes of NASDAQ day traders to become “the proud owner of

sex.com”).

90. See id. at 1035 (“Kremen never did anything. It would not be unfair to

TEXT MESSAGES ARE PROPERTY 1089

Umbro involved unsympathetic plaintiff Umbro International,

a multinational sporting equipment manufacturer, who tried to

gain control of umbro.com from a “classic domain name pirate”

who held the “contractual right to use” the domain name (implying

from the outset that the domain names were the but-for product of

a contractual relationship).

Umbro International, which had

already received the prized umbro.com domain as part of the

original default judgment against the cybersquatter, pursued

garnishment of the domain names solely to pay off its attorney’s

fees.

Kremen had his domain name involuntarily transferred from

him, needed the money, and had run out of legal options.

Conversely, Umbro International, a successful corporation, sought

possession of a domain name it never previously owned or lost, and

could likely absorb the relatively small amount of attorney’s fees it

sought to garnish.

It is therefore unsurprising that the Kremen

court awarded down-on-his-luck Gary Kremen recourse against

the culpable defendant,

while the Umbro court declined to award

Umbro International the domain names to pay off its attorney’s

fees.

hold Network Solutions responsible and force it to try to recoup its losses by

chasing down Cohen. This, at any rate, is the logic of the common law, and we do

not lightly discard it.”).

91. See Umbro Int’l, Inc. v. 3263851 Canada, Inc., 48 Va. Cir. 139, 140 (Va.

Cir. Ct. 1999) (describing the judgment debtor who owned umbro.com as a “classic

domain name pirate”).

92. See Umbro, 529 S.E.2d at 81 (“[W]e address the issue whether a

contractual right to use an Internet domain name can be garnished.”).

93. See Moringiello, supra note 79, at 105 (“Like many judgment debtors,

Canada, Inc. did not write a check to Umbro, so like many judgment creditors,

Umbro was forced to find property against which to enforce its judgment.”).

94. See Kremen v. Cohen, 337 F.3d 1024, 1035 (9th Cir. 2003) (“Kremen

never did anything. It would not be unfair to hold Network Solutions responsible

and force it to try to recoup its losses by chasing down Cohen. This, at any rate,

is the logic of the common law, and we do not lightly discard it.” (emphasis in

original)).

95. See Network Sols., Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 81 (Va. 2000)

(describing Umbro International’s default judgment regarding umbro.com

against 3263851 Canada).

96. See Kremen, 337 F.3d at 1036 (“The evidence supported a claim for

conversion, and the district court should not have rejected it.”).

97. See Umbro, 529 S.E.2d at 88 (“Even though the Internet is a ‘new avenue

of commerce,’ we cannot extend established legal principles beyond their

1090 76 WASH. & LEE L. REV. 1073 (2019)

A second important distinction between Kremen and Umbro

lies in the different legal doctrines at play within each case. Gary

Kremen’s conversion claim was based on the common law tort, a

necessary element of which was the court’s determination that

domain names constitute intangible property.

The flexible

common law basis of Kremen’s conversion claim gave the court

leeway to determine an equitable outcome.

In contrast, Umbro International’s garnishment claim was

based on a Virginia statute that did not require the court to

determine whether domain names constitute intangible personal

property.

100

Umbro’s rigid statutory basis constrained the court to

solely determining whether a domain name was within the

definition of a “liability” under the Virginia garnishment law.

101

short, the Kremen court had to declare that domain names

statutory parameters. . . . For these reasons, we will reverse the judgment of the

circuit court, dismiss the garnishment summons, and enter final judgment in

favor of NSI.” (quoting Intermatic Inc. v. Toeppen, 947 F. Supp. 1227, 1229 (N.D.

Ill. 1996))).

98. See Kremen, 337 F.3d at 1029 (explaining that the California common

law tort of conversion required the plaintiff to show ownership or a right to

possession of property, wrongful disposition of the property, and damages).

99. See id. at 1036 (explaining that the court will “apply the common law

until the legislature tells us otherwise. And the common law does not stand idle

while people give away the property of others”).

100. See Umbro, 529 S.E.2d at 85 (describing garnishment in Virginia as “a

creature of statute unknown to the common law, and hence the provisions of the

statute must be strictly satisfied”).

101. See Moringiello, supra note 79, at 105 (“Garnishment, an action that did

not exist at common law, is a creature solely of statute. . . . The Virginia

garnishment statute is specific as to what types of property it covers and under

the statute, only a ‘liability’ to the judgment debtor can be garnished.”).

TEXT MESSAGES ARE PROPERTY 1091

constitute intangible property to reach an equitable outcome,

102

while the Umbro court did not.

103

D. The Evolution of Cybertrespass

Fifteen years after Kremen and Umbro, the question of

whether intangible property can be converted or trespassed upon

remains far from settled.

104

However, Kremen’s intangible property

102. See Kremen, 337 F.3d at 1036

The district court thought there were “methods better suited to

regulate the vagaries of domain names” and left it “to the legislature

to fashion an appropriate statutory scheme.” The legislature, of course,

is always free (within constitutional bounds) to refashion the system

that courts come up with. But that doesn’t mean we should throw up

our hands and let private relations degenerate into a free-for-all in the

meantime. We apply the common law until the legislature tells us

otherwise. And the common law does not stand idle while people give

away the property of others.

(internal citation omitted).

103. See Umbro, 529 S.E.2d at 88 (“Even though the Internet is a ‘new avenue

of commerce,’ we cannot extend established legal principles beyond their

statutory parameters. . . . For these reasons, we will reverse the judgment of the

circuit court, dismiss the garnishment summons, and enter final judgment in

favor of NSI.” (quoting Intermatic Inc. v. Toeppen, 947 F. Supp. 1227, 1229 (N.D.

Ill. 1996))).

104. See Kremen, 337 F.3d at 1030–35 (explaining what constitutes an

intangible personal property and determining that an intangible personal

property can be the basis for a conversion claim); Thyroff v. Nationwide Mut. Ins.,

460 F.3d 400, 405 n.2 (2d Cir. 2006) (explaining that although it “is unclear and

unresolved” whether electronic data constitutes intangible property, the Kremen

theory is one possible solution to the issue at hand); Emke v. Compana, L.L.C.,

No. 3:06-CV-1416-L, 2007 WL 2781661, at *5 (N.D. Tex. Sept. 25, 2007)

(explaining that a claim of conversion of a domain name depends on what state

law is applied); Dethmers Mfg. Co., Inc. v. Automatic Equip. Mfg., 23 F. Supp. 2d

974, 1006–07 (N.D. Iowa 1998) (surveying state caselaw to decide that Nebraska

law might allow a claim for conversion of an unpatented idea); Curtis Mfg. Co. v.

Plasti-Clip Corp., 888 F. Supp. 1212, 1233–34 (D.N.H. 1994) (holding that the

plaintiff could make a claim for conversion of an idea). But see Kaempe v. Myers,

367 F.3d 958, 963 (D.C. Cir. 2004) (“[W]e conclude that it remains unclear

whether D.C. law would permit an action for conversion of patent rights. The D.C.

courts have never ruled on whether, or under what circumstances, intangible

property of this nature can be the subject of a suit for conversion.”); In re TJX Co.

Retail Sec. Breach Litig., 527 F. Supp. 2d 209, 211 (D. Mass. 2007) (determining

that Massachusetts law does not support a claim for conversion of intangible

account data); Famology.com Inc. v. Perot Sys. Corp., 158 F. Supp. 2d 589, 591

(E.D. Pa. 2001) (explaining that because domain names are not tangible personal

property, the plaintiff could not bring a conversion action under Pennsylvania

1092 76 WASH. & LEE L. REV. 1073 (2019)

theory is spreading beyond domain name cases, as courts have

recognized websites,

105

trademarks,

106

licenses,

107

investor lists,

108

and even expressed ideas

109

as forms of intangible property.

Because the internet’s various equipment and virtual facilities

are “not by any stretch of the imagination real property,” the

technological revolution forced courts and legal scholars to

reevaluate the property laws governing the various digital devices

that make up the internet.

110

The digital devices that constitute

the internet are a “new” form of chattel, so it is logical that the law

of trespass to chattels and conversion evolved to govern these

devices.

111

The Restatement (Second) of Torts provides the classic

language of an actionable trespass to chattels claim:

law).

105. See Margae, Inc. v. Clear Link Tech., 620 F. Supp. 2d 1284, 1288 (D. Utah

2009) (explaining that a website is personal property because it “has a physical

presence on computer drive, causes tangible effects on computers, and can be

perceived by the senses”).

106. See English & Sons, Inc. v. Straw Hat Rest., Inc., 176 F. Supp. 3d 904,

921 (N.D. Cal. 2016)

Trademarks, service marks, trade names, and much of the other

intellectual property at issue here, meet this test. These can be

precisely defined, exclusively possessed and controlled, and they can

be the subject of a legitimate claim to such exclusivity. Under Kremen,

then, such intellectual property should normally be proper objects of

conversion.

107. See M.C. Multi-Family Dev., L.L.C. v. Crestdale Assoc., Ltd., 193 P.3d

536, 543 (Nev. 2008) (“[W]e conclude that a contractor’s license is intangible

personal property that may be converted under Nevada law.”).

108. See Shmueli v. Corcoran Grp., 802 N.Y.S.2d 871, 876 (N.Y. Sup. 2005)

(“The court, therefore, finds that plaintiff’s computerized client/investor list is

convertible property.”).

109. See Astroworks, Inc. v. Astroexhibit, Inc., 257 F. Supp. 2d 609, 618

(S.D.N.Y. 2003) (“Although an idea alone cannot be converted, the ‘tangible

expression or implementation of that idea’ can be.” (quoting Matzan v. Eastman

Kodak Co., 134 A.D.2d 863, 864 (N.Y. App. Div. 1987))).

110. See Richard A. Epstein, Cybertrespass, 70 U.

CHI. L. REV. 73, 76 (2003)

(explaining how the rise of the internet has caused a “rethinking of the property

relations governed by the common law of trespass”).

111. See id. (“[T]he focus of emphasis shifts because the various equipment

and facilities that make up the internet are not by any stretch of the imagination

real property. Rather, they are a new form of chattel, which are presumptively

governed by the law of trespass to chattels.”).

TEXT MESSAGES ARE PROPERTY 1093

One who commits a trespass to a chattel is subject to liability to

the possessor of the chattel if, but only if,

(a) he dispossesses the other of the chattel, or

(b) the chattel is impaired as to its condition, quality, or value,

substantial time, or

(d) bodily harm is caused to the possessor, or harm is caused to

some person or thing in which the possessor has a legally

protected interest.

112

The earliest virtual trespass to chattels (cybertrespass) cases

involved unauthorized intrusions via the internet upon computer

equipment.

113

These intrusions were serious enough to either

overload the plaintiffs’ computers and cause them to crash or

crowd their hard drives’ limited space with e-mails and burden the

system owner with the task of deleting them.

114

More recently,

virtual trespass to chattels cases have involved plaintiffs bringing

claims based on trespass to intangible personal properties, such as

social media accounts

115

and e-mails.

116

112. RESTATEMENT (SECOND) OF TORTS § 218 (AM. LAW. INST. 1965).

113. See, e.g., eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1063,

1071 (N.D. Cal. 2000) (granting eBay a preliminary injunction against Bidder’s

Edge web spiders based on a trespass to chattels claim even though Bidder’s Edge

software occupied, at most, between 1.11% and 1.53% of eBay’s servers); Am.

Online, Inc. v. IMS, 24 F. Supp. 2d 548, 550–51 (E.D. Va. 1998) (finding the

defendant liable for trespass to chattels for sending unauthorized bulk e-mails);

CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1027–28 (S.D.

Ohio 1997) (granting the plaintiff a preliminary injunction to stop defendant’s

spam e-mails under a trespass to chattels theory). But see Intel Corp. v. Hamidi,

71 P.3d 296, 309 (Cal. 2003) (denying Intel’s trespass to chattel claim because

Hamidi’s mass e-mails did not physically damage Intel’s servers).

114. See CompuServe, 962 F. Supp. at 1028 (“High volumes of junk e-mail

devour computer processing and storage capacity, slow down data transfer

between computers over the Internet by congesting the electronic paths through

which the messages travel, and cause recipients to spend time and money wading

through messages that they do not want.”).

115. See Salonclick LLC v. SuperEgo Mgmt. LLC, 16 Civ. 2555 (KMW), 2017

WL 239379, at *4 (S.D.N.Y. Jan. 18, 2017) (establishing that social media

accounts are intangible personal property capable of being the subject of a

conversion action, but dismissing the plaintiff’s trespass to chattels action

because the social media account itself did not suffer injury as a result of

defendant’s trespass).

116. See Porters Bldg. Ctrs., Inc. v. Sprint Lumber, No. 16-06055-CV-SJ-ODS,

1094 76 WASH. & LEE L. REV. 1073 (2019)

Although text messages are a different form of digital

communication from e-mails,

117

two recent opinions determining

that e-mails constitute intangible personal property could outline

the legal framework courts will apply to disputes over text

messages in future cases.

118

In Porters Building Centers, Inc. v.

Sprint Lumber,

119

a Missouri federal district court determined that

if an intangible property has a connection to tangible property, the

intangible property is a chattel capable of being the subject of a

trespass to chattels action.

120

The court then explained that

e-mails are a “chattel” because e-mail communications are

connected to tangible servers stored in physical data centers.

121

After determining that e-mails constitute a “chattel,” the court

concluded that the plaintiff had a valid trespass to chattels claim

against the defendant for improperly accessing and reading his

personal e-mails.

122

As well, in Skapinetz v. CoesterVMS.com Inc.,

123

a Maryland

federal district court determined that e-mails, while not a

traditional form of property, constitute “digital” property

nonetheless.

124

This case again concerned a client’s improper

2017 WL 4413288, at *15 (W.D. Mo. Oct. 2, 2017) (establishing that e-mails are

intangible personal property, and thus a chattel, because the e-mail

communication is connected to a tangible server, and thus allowing plaintiff’s

trespass to chattels claim to survive summary judgment).

117. Supra Part II.B.

118. See Porters Bldg. Ctrs., 2017 WL 4413288, at *11 (finding that e-mails

constitute intangible personal property because personal property can be

intangible if there is a connection to tangible property, and the e-mail

“communications are connected to something tangible—i.e., Google’s servers”).

119. No. 16-06055-CV-SJ-ODS, 2017 WL 4413288 (W.D. Mo. Oct. 2, 2017).

120. See id. at *11 (“The Court concludes Missouri courts would find a

trespass to chattel claim includes an email communication when the email

communication is connected to a tangible object, such as a server.”).

121. See id. (“The Court takes judicial notice that Google stores its customers’

email communications on servers. . . . Accordingly, [the plaintiff’s] email

communications are connected to something tangible—i.e., Google’s servers.”).

122. See id. (concluding that because a “chattel” extends to intangible

property when the intangible property is connected to a tangible object, the

plaintiff could maintain his trespass to chattels action against the defendant).

123. No. PX-17-1098, 2018 WL 805393 (D. Md. Feb. 9, 2018).

124. See id. at *4 (“Although email accounts and electronic communications

are not tangible property in the traditional sense, many courts have recognized

TEXT MESSAGES ARE PROPERTY 1095

access to a former employer’s personal Gmail account.

125

After

finding that e-mails constitute digital property, the court

proceeded to determine that Georgia law allowed for both trespass

to chattels claims and conversion claims involving intangible

personal property such as e-mails.

126

By extension, the courts’

reasoning in Porters Building Centers and Skapinetz could just as

easily have applied to a case involving improper access to an

iMessage account.

In sum, intangible property law has evolved beyond Kremen’s

domain names to encompass a diverse group of digital assets.

Courts are increasingly receptive to plaintiffs bringing

property-based claims when their digital assets are trespassed

upon or stolen. But, when plaintiffs do not bring these

property-based causes of action, the judiciary defaults to Umbro’s

“contractually created right” theory when dealing with digital

assets,

127

as Part IV will show.

128

IV. The Law Does Not Protect Text Messages

A. The Judiciary Does Not Protect Text Messages: The iMessage

Litigation

The cases discussed below, centering around the Apple text

messaging application “iMessage,” merit thorough analysis

because they are the only instances in which the judiciary has

analyzed disputes regarding iMessage delivery problems.

129

The

cases do not analyze the disputes over missing and delayed text

claims for conversion or trespass to chattels involving digital ‘property.’”).

125. See id. (“Skapinetz pleads that Defendants committed the torts of

trespass and conversion by accessing without authorization, and intermeddling

with, Skapinetz’s email accounts and electronic communications.”).

126. See id. (“These facts, taken as true, plausibly establish that Defendants

assumed and exercised the right of ownership over Skapinetz’s email accounts,

albeit briefly, and these actions were inconsistent with Skapinetz’s property

rights. Therefore, Defendant’s Motion to Dismiss the common law claim for

conversion (Count Four) is DENIED.”).

127. Supra Part III.B.

128. Infra Part IV.A.

129. Infra Part IV.A.

1096 76 WASH. & LEE L. REV. 1073 (2019)

messages as if they were property trespassed upon or stolen.

130

Instead, the cases treat the disputes over text message delivery as

a contractual dispute, harkening back to Umbro’s analysis of the

specific terms of the contractual agreement.

131

The iMessage litigation attracted a fair amount of publicity

132

because many former iPhone users experienced, and continue to

experience,

133

similar iMessage disruptions after switching to a

non-Apple device.

134

iMessage, Apple’s proprietary text messaging

service, is available only on Apple devices, and Apple works hard

to keep it that way.

135

This strategy seems to work for Apple, as

iPhone users often cite iMessage as the sole reason they refrain

130. Infra Part IV.A.

131. Infra Part IV.A.

132. See Christina Bonnington, Apple Hit with Federal Lawsuit Over

iMessage Delivery Issues, WIRED (Nov. 11, 2014, 7:55 PM),

https://www.wired.com/2014/11/apple-lawsuit-imessages/ (last visited Mar. 19,

2019) (detailing the lawsuit a former iPhone user brought against Apple for

interfering with the delivery of iMessage text messages after the former iPhone

user switched to an Android phone) (on file with the Washington and Lee Law

Review).

133. See, e.g., Terry Storch (@TerryStorch), T

WITTER (Dec. 14, 2016),

https://twitter.com/TerryStorch/status/805540549361070080 (last visited Mar.

19, 2019) (“The transition from iPhone to Android is still rough because of

iMessage. As hard as you try, messages still get lost in the Interwebs.”) (on file

with the Washington and Lee Law Review); Lucocis, After Almost 18 Months of

Being on Android, I Still Have Problems Because of iMessages, R

EDDIT (May 26,

2016),

https://www.reddit.com/r/Android/comments/40np11/after_almost_18_months_of

_being_on_android_i/ (last visited Mar. 19, 2019) (describing a former iPhone

user’s struggle with losing text messages after switching to an Android device)

(on file with the Washington and Lee Law Review).

134. See Damon Beres, Apple Trapped Me on iOS—Perhaps Forever,

MASHABLE (Oct. 4, 2017), https://mashable.com/2017/10/04/the-iphone-owns-my-

soul/ (last visited Mar. 19, 2019) (“If you switch to Android from iOS, I can nearly

guarantee that you will miss texts from people you care about, and you may not

be able to figure out how to fix it, exactly.”) (on file with the Washington and Lee

Law Review).

135. See Chance Miller, This App Claims to Bring iMessage Support to

Android, But Don’t Expect It To Last, 9

TO5MAC (Dec. 12, 2017, 3:39 PM),

https://9to5mac.com/2017/12/12/imessage-support-on-android-app/ (last visited

Mar. 19, 2019) (“As has been the case with previous services that claim to add

iMessages support to Android, you shouldn’t expect this one to last for long. Apple

generally does a good job of cracking down on these sorts of applications.”) (on file

with the Washington and Lee Law Review).

TEXT MESSAGES ARE PROPERTY 1097

from switching to a non-Apple cellular device.

136

Even if Apple’s

self-contained technological ecosystem works fine for those who

stick to Apple products, those who manage to escape Apple’s

“walled garden” soon find that making the switch is more painful

than expected.

137

1. Does Withholding Text Messages Amount to Tortious

Interference with Contract?

Moore v. Apple, Inc.

138

involved a plaintiff who claimed she

failed to receive iMessage text messages after she switched from

an Apple iPhone to an Android device.

139

Adrienne Moore, who

switched from an iPhone to a Samsung device running Android

operating software, sued Apple because she failed to receive

“countless text messages sent to her from Apple device users.”

140

136. See, e.g., Patrick Holland, iPhone’s Blue Bubble Won’t Let Me Stray to the

Galaxy S8, CNET (Apr. 21, 2017, 6:00 AM), https://www.cnet.com/news/why-the-

iphones-blue-bubble-keeps-me-from-going-android/ (last visited Mar. 19, 2019)

(“So if iMessage doesn’t hop ship to Android, then I probably won’t either.”) (on

file with the Washington and Lee Law Review); Damon Beres, iMessage Is the

Only Thing Keeping Me on an iPhone, M

ASHABLE (Feb. 10, 2017),

https://mashable.com/2017/02/10/imessage-is-keeping-me-on-

iphone/#lKJYsF9EEmq8 (last visited Mar. 19, 2019) (“Apple has trapped me.

iMessage, for the foreseeable future, will be the reason I stay on an iPhone, the

reason I update my iOS software and ultimately the reason I buy a new iPhone

when upgrade time rolls around.”) (on file with the Washington and Lee Law

Review); Lauren Goode, iMessage is the Glue that Keeps Me Stuck to the iPhone,

ERGE (Oct. 10, 2016, 9:36 AM),

https://www.theverge.com/2016/10/10/13225514/apple-iphone-cant-switch-pixel-

android-imessage-addiction (last visited Jan. 28, 2019) (“Of course Apple wasn’t

going to allow iMessage to function on Android: iMessage is the glue that keeps

people stuck to their iPhones and Macs.”) (on file with the Washington and Lee

Law Review).

137. See Victor Luckerson, Apple Acknowledges iMessage Problems, T

IME

(May 22, 2014, 4:32 PM), http://www.cnn.com/2014/05/22/tech/mobile/aple-

imessage-problems-fix/index.html (last visited Mar. 19, 2019) (“But some people

who switch from an iPhone to a non-Apple device have found it difficult to

dissociate their phone numbers from iMessage. That leads to text messages from

friends getting sucked up into Apple’s database and disappearing.”) (on file with

the Washington and Lee Law Review).

138. 73 F. Supp. 3d 1191 (N.D. Cal. 2014).

139. See id. at 1195 (“Plaintiff replaced her iPhone 4 with a Samsung Galaxy

S5. As a result of that switch, Plaintiff alleges that she has failed to received

countless text messages sent to her from Apple device users.”).

140. See id. (describing plaintiff Adrienne Moore’s factual allegations

1098 76 WASH. & LEE L. REV. 1073 (2019)

Moore reached out to Verizon, her cellular service provider, and

Apple, and although both acknowledged that she was experiencing

a known issue, their proposals to troubleshoot the problem were

ultimately unsuccessful.

141

The California federal district court

noted that “[Moore was] not the only former Apple device user to

encounter the problem of undelivered text messages.”

142

Despite

her repeated attempts to rectify the situation and receive text

messages from iPhone users, Moore continued to miss text

messages.

143

Further, Moore stated that had she known about the

undelivered text message problem at the outset, she would not

have used iMessage or purchased an iPhone in the first place.

144

Moore claimed that Apple’s failure to deliver iMessages to her

Android device (1) tortiously interfered with her Verizon contract

and (2) violated California’s Unfair Competition Law

145

(UCL) and

California’s Consumer Legal Remedies Act

146

(CLRA).

147

Although

the court dismissed Moore’s statutory UCL and CLRA claims, her

tortious interference with contract claim survived the motion to

dismiss.

148

Moore claimed that (1) there was a valid contract between her

and Verizon Wireless; (2) Apple had knowledge of this contract;

(3) Apple intentionally acted to induce a breach or disruption of her

contractual relationship with Verizon; (4) there was an actual

breach or disruption of her contract; and (5) that there was

regarding her failure to receive text messages after switching from an iPhone to

an Android device).

141. Id.

142. Id.

143. Id.

144. Id.

145. C

AL. CIV. CODE § 1780(a) (West, Westlaw through Ch. 4 of 2019 Reg.

Sess.).

146. C

AL. BUS. & PROF. CODE § 17204 (West, Westlaw through Ch. 4 of 2019

Reg. Sess.).

147. See Moore, 73 F. Supp. 3d at 1195 (outlining Moore’s causes of action).

148. See id. at 1205 (“[I]n summary, the Court denies Defendant’s motion to

dismiss Plaintiff’s unlawful business practice UCL claim based on Plaintiff’s

tortious interference with contract claim. The Court grants Defendant’s motion to

dismiss Plaintiff’s unfair business practice UCL claim with prejudice.”).

TEXT MESSAGES ARE PROPERTY 1099

resulting damage.

149

The court, in finding Moore sufficiently

alleged her tortious interference with contract claim, determined

that (1) a valid contract existed between Moore and Verizon which

established the duty to send and receive text messages; (2) Apple

had knowledge of Moore’s contract with Verizon; (3) Apple knew

about the undelivered text messages issue and did not alert Moore;

and (4) Apple’s iMessage application prevented Moore from

fulfilling her contractual right to send and receive text

messages.

150

Following the court’s decision to allow her case to proceed on

the tortious interference with contract claim, Moore obtained

documents during discovery which seemingly strengthened her

claim.

151

Moore cited internal e-mails from Google showing the

iMessage problem persisted and Apple’s troubleshooting tips on

solving the undelivered text message problem did not work.

152

What is more, she cited internal e-mails from Apple employees who

were aware of the iMessage issue and apparently knew that

Apple’s guidance on fixing the problem was ineffective.

153

Notwithstanding Moore’s additional evidence of Apple’s

mishandling of the situation, the court later denied Moore’s motion

for class certification under Rule 23.

154

Although the court

conceded that Moore satisfied the Article III standing requirement,

the court denied her motion because her proposed class did not

(1) satisfy Rule 23(a)’s commonality requirement or (2) satisfy

Rule 23(b)’s predominance requirement.

155

Rule 23(a) requires a

149. See id. at 1202–03 (evaluating whether Moore’s tortious interference

with contract claim alleged enough facts to state a claim to relief that is plausible

on its face).

150. Id.

151. See Moore v. Apple Inc., 309 F.R.D. 532, 537 (N.D. Cal. 2015) (discussing

the plaintiff’s evidence regarding Apple’s awareness of the iMessage problem).

152. See id. (“Plaintiff cites internal emails from Google, Inc., from early 2015

indicating that the iMessage problem was not only persisting, but that the

‘iMessage deregistration tool doesn’t work.’” (internal citations omitted)).

153. See id. (“Plaintiff also points to Apple’s own internal documents

apparently discussing how Apple’s ‘so-called fixes’ failed to address the

disruptions in text message delivery.”).

154. See id. at 549 (denying Moore’s motion for class certification because her

“proposed class includes, by definition, proposed class members who could not

have suffered any injury and that individualized questions with respect to

Defendant’s liability will predominate over any common questions of law or fact”).

155. See id. at 548 (“In sum, the Court is not persuaded that the question of

1100 76 WASH. & LEE L. REV. 1073 (2019)

common contention that “must be of such nature that it is capable

of classwide resolution—which means the determination of its

truth or falsity will resolve an issue that is central to the validity

of each one of the claims in one stroke.”

156

Rule 23(b)’s

predominance requirement “tests whether proposed classes are

sufficiently cohesive to warrant adjudication by representation”

and analyzes “the relationship between the common and

individual issues in the case.”

157

The court held that Moore’s proposed class did not meet Rule

23(a)’s commonality requirement because not every class member

could claim they suffered the same contractual injury of not

receiving text messages due to iMessage.

158

And Moore’s proposed

class did not meet Rule 23(b)’s predominance requirement because

the contractual variations among class members would necessitate

individualized inquiries into each claimant’s contractual rights.

159

The court’s decision, albeit organized in separate analyses

under Rule 23(a) and Rule 23(b), essentially hinged on a simple

contractual issue: members of the proposed class each had

different cellular service contracts containing different contractual

provisions.

160

Because the members of the proposed class each had

different cellular contracts, the court could not determine that each

contract created the same contractual duty to send and receive text

messages that Moore’s did.

161

Consequently, because there were

whether iMessage is the cause of any contractual breach or interference satisfies

the commonality requirement under Rule 23(a), much less the predominance

requirement under Rule 23(b).”).

156. Id. at 549.

157. Id. at 543.

158. Id. at 548–49.

159. Id. at 546–47.

160. See id. at 546

[T]he Court finds that there are material variations in the proposed

class members’ wireless service agreements. These individualized

issues will predominate because determining the fact of injury will

require evaluating the particular terms of each individual class

member’s wireless service agreement, in order to determine whether

Defendant actually caused a breach or interference with the

agreement.

161. See id. (“[T]he Court could therefore not determine on a classwide or even

carrier-wide basis whether individual class members were actually entitled to

TEXT MESSAGES ARE PROPERTY 1101

likely members of the proposed class who did not have a

contractual right to send and receive text messages, the proposed

class was overbroad.

162

The court’s denial of class certification effectively ended

Moore’s case, and without the strength of a class action lawsuit,

she withdrew her claim after presumably reaching an out-of-court

settlement with Apple.

163

2. Can Apple Intercept Text Messages Under the Wiretap Act?

In Backhaut v. Apple, Inc.,

164

plaintiffs Adam Backhaut, Joy

Backhaut, and Kenneth Morris (the Backhaut plaintiffs) sued

Apple for wrongfully intercepting and storing iMessages and

preventing former iPhone users from receiving iMessages.

165

Adam

Backhaut and Kenneth Morris switched from iPhones to

non-Apple devices, and alleged that after making the switch they

failed to receive text messages sent from iPhone users.

166

Joy

Backhaut remained an iPhone user during the litigation, and she

alleged that she sent her husband, Adam, text messages on her

iPhone following his switch to a non-Apple device that he did not

receive.

167

The Backhaut plaintiffs claimed Apple’s intercepting, storing,

and withholding text messages violated the Stored

receive text messages.”).

162. Id. at 543.

163. See Petitioner Adrienne Moore’s Unopposed Motion to Withdraw Petition

for Permission to Appeal Denial of Class Certification Pursuant to Fed. R. Civ. P.

23(f) at 1, Moore v. Apple, Inc., No. 15-80209 (9th Cir. Dec. 7, 2015) (“The parties

have reached a resolution in this action, thereby mooting the petition to appeal.”).

164. 74 F. Supp. 3d 1033 (N.D. Cal. 2014).

165. See id. at 1037 (“The gravamen of Plaintiffs’ Complaint is that Apple

wrongfully intercepts, stores, and otherwise prevents former Apple device users

from receiving text messages sent to them from current Apple device users.”).

166. See id. at 1038–39 (explaining that Adam Backhaut and Kenneth Morris

purchased non-Apple devices after using iPhones and that both had difficulties

receiving text messages from current iPhone users).

167. See id. at 1038 (“Following Adam Backhaut’s switch, Plaintiff Joy

Backhaut continued to send him text messages from her iPhone. On Joy

Backhaut’s phone, the word ‘delivered’ appeared under her messages to her

spouse, but Adam Backhaut never received those messages.”).

1102 76 WASH. & LEE L. REV. 1073 (2019)

Communications Act,168 the Wiretap Act,169 California’s Unfair

Competition Law (UCL),170 and California’s Consumers Legal

Remedies Act (CLRA)171.172 The court quickly disposed of the

Backhaut plaintiffs’ Stored Communications Act claim for failure

to state a claim, CLRA claim for lack of standing, and UCL claim

for lack of standing and failure to state a claim.173 This left

Apple’s alleged Wiretap Act violations as the plaintiffs’ sole

surviving claim.174

The Backhaut plaintiffs alleged that Apple’s intentional

interception of iPhone users’ text messages sent to former iPhone

users violated the Wiretap Act.175 The Wiretap Act, which

“protects communications in transit,”

176

bars the “interception” of

“wire, oral, or electronic communications” and grants a private

cause of action against any entity who “intentionally intercepts,

endeavors to intercept, or procures any other person to intercept

or endeavor to intercept, any wire, oral, or electronic

communication.”

177

The California federal district court analyzed

five factors to determine whether the Backhaut plaintiffs

sufficiently alleged a Wiretap Act violation: (1) whether the

plaintiffs alleged an actionable “interception”; (2) whether Apple’s

actions were within the “ordinary course of business exception”;

(3) whether the plaintiffs alleged intent; (4) whether Apple’s

168. 18 U.S.C. § 2701 (2012).

169. 18 U.S.C. § 2511.

170. CAL. BUS. & PROF. CODE § 17200 (West, Westlaw through Ch. 4 of 2019

Reg. Sess.).

171. C

AL. CIV. CODE § 1750 (West, Westlaw through Ch. 4 of 2019 Reg. Sess.).

172. See Backhaut v. Apple, Inc., 74 F. Supp. 3d 1033, 1040 (N.D. Cal. 2014)

(outlining the Backhaut plaintiffs’ causes of action).

173. See id. at 1052 (listing the court’s ruling on the Backhaut plaintiffs’

Stored Communications Act claim, the CLRA claims, and the UCL claims).

174. See id. (“The Court DENIES Defendant’s motion to dismiss Plaintiffs’

Wiretap Act Claim.”).

175. See id. at 1042 (summarizing the Backhaut plaintiffs’ claims that gave

rise to Apple’s alleged Wiretap Act violations).

176. See id. (distinguishing the Stored Communications Act, which protects

stored communications, from the Wiretap Act, which protects communications

that are in transit).

177. 18 U.S.C. § 2511(1); id. § 2520.

TEXT MESSAGES ARE PROPERTY 1103

alleged acts fell within the statutory good faith exception to

liability; and (5) whether the plaintiffs consented to Apple’s text

message interceptions.

178

First, the court determined that the Backhaut plaintiffs

alleged an actionable “interception” under the Wiretap Act because

the plaintiffs claimed that Apple intercepted and prevented text

messages from being delivered using a “device” and the plaintiffs

did not direct the messages toward Apple.

179

The plaintiffs’ claimed

“interception” was Apple’s automated system of incorrectly

categorizing messages sent to former iPhone users as iMessages

instead of regular SMS/MMS text messages that were compatible

with their non-Apple devices.

180

Second, the court found that the

Apple’s actions were not within the “ordinary course of business

exception” under the Wiretap Act because the plaintiffs sufficiently

alleged that Apple’s “interception” neither facilitated nor was

incidental to Apple’s business of transmitting electronic

communications.

181

Third, the court determined that the plaintiffs

sufficiently alleged intent under the Wiretap Act because, in

addition to outright claiming that Apple intentionally intercepted

the text messages, the plaintiffs supported their allegation with

information that Apple had been aware of the issue since 2012 and

that Apple had even charged former iPhone users money to fix the

problem.

182

And fourth, the court denied Apple’s claim that its

actions were covered by the “good faith exception” under the

Wiretap Act because it found that Apple fundamentally

misinterpreted the congressional intent behind the exception.

183

178. See Backhaut, 74 F. Supp. 3d at 1042 (outlining Apple’s five arguments

as to why the Backhaut plaintiffs did not sufficiently state a Wiretap Act violation

claim).

179. See id. (explaining the court’s finding that the plaintiffs sufficiently

alleged an actionable interception under the Wiretap Act).

180. See id. (clarifying the scheme the plaintiffs alleged Apple used to

“intercept” text messages).

181. See id. at 1043 (explaining why Apple’s claim that its actions in

“intercepting” text messages did not “fall within the ‘ordinary course of business’

exception under the Wiretap Act”).

182. See id. at 1044 (describing how the plaintiffs’ allegation that Apple

intended to intercept text messages satisfied the intent requirement under the

Wiretap Act).

183. See id. at 1047 (“To the extent Apple contends that Congress intended to

allow a good faith defense in reliance on any provision of the SCA and the Wiretap

Act, despite the explicit language of § 2520(d)(3) and § 2707(e)(3), that argument

1104 76 WASH. & LEE L. REV. 1073 (2019)

Thus, the Backhaut plaintiffs’ Wiretap Act claim turned on the

issue of the plaintiffs’ consent to Apple intercepting their text

messages. Under the Wiretap Act, it is lawful to intercept

electronic communication when a party “to the communication has

given prior consent to such interception.”

184

Apple alleged that a

provision of the Apple iOS iPhone operating system license

agreement, which all iPhone users (including the Backhaut

plaintiffs) agreed to before using their iPhone and iMessage

software, evidenced the plaintiffs’ prior consent to Apple’s

intercepting their text messages.

185

The relevant part of the

provision read: “[t]o facilitate delivery of your iMessages and to

enable you to maintain conversations across your devices, Apple

may hold your iMessages in encrypted form for a limited period of

time.”

186

At the outset, the court noted that the consent of one of the

parties to the two-way text messaging communication was enough

to preclude liability.

187

Because the Wiretap Act requires only “one

of the parties to the communication” give prior consent, either the

sender or the receiver of the text message could have consented to

Apple’s interception of the iMessages.

188

However, the Backhaut

plaintiffs (with the exception of Joy) were former iPhone owners

who were no longer bound by Apple’s consent agreement, so the

court’s focus shifted to whether current iMessage users, who sent

the text messages to the Backhaut plaintiffs, actually consented to

Apple’s intercepting their text messages.

189

is unavailing.”).

184. 18 U.S.C. § 2511(2)(d) (2012).

185. See Backhaut v. Apple, Inc., 74 F. Supp. 3d 1033, 1045 (N.D. Cal. 2014)

(analyzing Apple’s defense that the plaintiffs provided prior “consent to Apple’s

interception of their text messages”).

186. Id.

187. See id. (“Apple is correct that consent of one of the parties to the

communication, here the sender, would be sufficient to preclude liability under

the Wiretap Act.”).

188. 18 U.S.C. § 2511(2)(d).

189. See Backhaut, 74 F. Supp. 3d at 1045 (“The Court therefore addresses

whether current iPhone/iMessage users, like Plaintiff Joy Backhaut, have

consented to Apple’s ‘interception’ of text messages intended for former Apple

users.”).

TEXT MESSAGES ARE PROPERTY 1105

Although Apple argued that the above-quoted provision of its

iOS agreement proved current iMessage users consented to text

message interception, the court disagreed.

190

The court narrowly

interpreted the provision at issue, explaining that “the license

agreement only informs users that Apple may hold your iMessages

in encrypted form for a limited period of time to facilitate delivery

of your iMessages” to other iMessage users.

191

Noting that consent

is “not an all-or-nothing proposition,” the court determined that a

reasonable user could deduce from the provision that Apple

intercepts iMessages sent to other iMessage users, but does not

intercept text messages sent to non-iMessage users.

192

For that

reason, the court denied Apple’s motion to dismiss the Wiretap Act

claim based on consent.

193

Even though the Backhaut plaintiffs’ Wiretap Act claim

survived Apple’s motion to dismiss, the court would later deny the

plaintiffs’ Rule 23 motion for class certification.

194

The plaintiffs

sought both certification of a damages class under Rule 23(b)(3)

and certification of an injunctive relief class under Rule 23(b)(2).

195

The court refused to certify the plaintiffs’ class because (1) the

proposed class definition was unascertainable as there was no way

to prove proposed class members would be capable of reliable

self-identification, and (2) the individualized inquiry required to

190. See id. (“Apple relies solely on the bolded language in the iOS license

agreement in arguing that current Apple device users have consented to its

interception.”).

191. Id.

192. See id. at 1046 (explaining that because consent is not absolute, “Apple

may be correct that current Apple users consent to the interception of their

messages for the purpose of ‘facilitating’ their delivery, however, it is less clear

that users consent to interception where such interception would guarantee

nondelivery”).

193. See id. (“Taken as a whole, a reasonable user could conclude that Apple

intercepts messages sent as iMesssages to other iMessage users, but that no such

interception occurs if the text message cannot be sent as an iMessage. As such,

the Court denies Defendant’s motion to dismiss the Wiretap Act claim on the basis

of consent.”).

194. See Backhaut v. Apple Inc., No. 14–CV–02285–LHK, 2015 WL 4776427,

at *1 (N.D. Cal. Aug. 13, 2015) (“Having considered the submissions of the parties,

the relevant law, and the record in this case, the Court hereby DENIES Plaintiffs’

motion for class certification.”).

195. See id. at *3 (“Plaintiffs seek certification of a damages class under Rule

23(b)(3) and an injunctive relief class under Rule 23(b)(2).”).

1106 76 WASH. & LEE L. REV. 1073 (2019)

determine whether a proposed class member impliedly consented

to Apple’s alleged interception would predominate over any

common questions of law or fact.

196

Perhaps the most notable takeaway from the Backhaut

litigation is the court’s apparent waffling on the issue of consent to

interception under the Wiretap Act.

197

After scarcely mentioning

implied consent at the motion to dismiss stage,

198

the California

federal district court reversed course and used implied consent to

strike down the Backhaut plaintiffs’ proposed class.

199

For a fact-

finder to find implied consent to interception under the Wiretap

Act, the fact-finder need not determine whether the text message

user had specific knowledge of Apple’s text message interceptions,

but rather that the surrounding circumstances were enough to

convincingly notify text message users of the interceptions.

200

Borrowing its reasoning from In re Google Inc. Gmail

Litigation

201

(hereinafter “the Gmail litigation”), the court

determined that “broad disclosures” of information regarding the

iMessage issue might be sufficient to put enough members of the

proposed class on notice of the problem.

202

Because enough

196. See id. at *16 (“[T]he court finds that Plaintiffs . . . lack standing to seek

certification of an injunctive relief class under Rule 23(b)(2). Furthermore, the

Court finds that Plaintiffs’ proposed damages class under Rule 23(b)(3) is

unascertainable and that individualized issues with respect to consent

predominate over any common issues.”).

197. See id. at *15 (“Here, however, the predominance problems posed by

Defendant’s implied consent defense are distinct from the express consent defense

Defendant raised at the motion to dismiss stage.”).

198. See Backhaut v. Apple, Inc., 74 F. Supp. 3d 1033, 1045 (N.D. Cal. 2014)

(explaining that consent under the Wiretap Act can be either express or implied,

but it must be actual).

199. See Backhaut v. Apple Inc., No. 14–CV–02285–LHK, 2015 WL 4776427,

at *15 (N.D. Cal. Aug. 13, 2015) (“[T]he Court does find that the need to

determine, on an individual-by-individual basis, whether a proposed class

member impliedly consented to any alleged interception would predominate over

any common questions of law or fact.”).

200. See Berry v. Funk, 146 F.3d 1003, 1011 (D.C. Cir. 1998) (finding that

“consent can only be implied when the surrounding circumstances convincingly

show that the party knew about and consented to the interception”).

201. No. 13–MD–02430–LHK, 2014 WL 1102660 (N.D. Cal. Mar. 18, 2014).

202. See id. at *20 (explaining how “a fact-finder could find implied consent

even based on broad disclosures”).

TEXT MESSAGES ARE PROPERTY 1107

members of the proposed class might have been on notice of the

iMessage problem, those members’ continued iMessage use

(following possible notice) might mean they impliedly consented to

the interception.

203

In the Gmail litigation, seven years of regular

nationwide media coverage of Google’s scanning customers’

e-mails, coupled with a “panoply” of Google’s disclosures on the

issue, constituted “broad disclosures” on which the court based its

finding of implied consent.

204

In contrast, the “broad disclosures” of

information regarding the iMessage problem that the court in

Backhaut relied on to find implied consent were tech blog posts,

tech blog comments, forum postings and comments on Apple’s

website, and a disclosure Apple posted on its website warning

users to deregister their iMessage before switching to a non-Apple

device.

205

In effect, the Backhaut court found that blog posts, forum

posts, and a single disclosure on Apple’s website were equivalent

to seven years of nationwide media coverage and numerous

corporate disclosures in creating a potential implied consent

issue.

206

Because the implied consent issue necessitated an inquiry

into the actual consent of each proposed class member, the court

found that the consent issue predominated any common questions

of law among class members and denied the Backhaut plaintiffs’

motion for class certification.

207

The Ninth Circuit recently upheld the Backhaut decision on

appeal.

208

Interestingly, the Ninth Circuit sidestepped the entire

203. See Backhaut, 2015 WL 4776427, at *14–15 (reasoning that “broad

disclosures” of news information might have been sufficient to put members of

the proposed class on notice of the iMessage interceptions).

204. See In re Gmail Litig., 2014 WL 1102660, at *18–20 (listing the sources

of information disclosure that led the court to find that consent cannot be

determined on a class-wide basis).

205. See Backhaut, 2015 WL 4776427, at *15 (listing the various sources of

information available covering the iMessage delivery issues).

206. See id. (explaining that public information available concerning the

iMessage issue might be sufficient to put iMessage users on notice because news

articles were arguably evidence of implied consent in the Gmail litigation).

207. See id. (“In sum, the Court finds that the highly individualized and

fact-specific inquiry required to determine whether a proposed class member

impliedly consented to Defendant’s alleged interception would predominate over

any common questions of law or fact.”).

208. See Backhaut v. Apple Inc., No. 15-17523, 723 Fed. Appx. 405, 407–408

(9th Cir. Jan. 29, 2018) (upholding the district court’s decision to dismiss the

1108 76 WASH. & LEE L. REV. 1073 (2019)

consent issue, and determined that text messages held in

“temporary storage” are not intercepted under the Wiretap Act.

209

Additionally, the court found that the “misclassification” by the

sender of a message as an iMessage (instead of a text message) to

a former iPhone user caused the problem, and not Apple’s faulty

iMessage-to-text message handoff system.

210

Just as the judiciary

has proven ineffective at protecting text message users’ rights

against corporate overreach, the Constitution is likewise

inadequate at protecting their rights against government

overreach.

B. The Fourth Amendment Does Not Protect Text Messages: The

Third-Party Loophole

Our cell phones and constitutional law collide when law

enforcement officials seek to search the contents of our cell phones

as part of an arrest, investigation, or prosecution. Consider

another scenario: on the day of Mark’s high school senior prom,

someone calls in a bomb threat to Mark’s high school. Mark is sent

home for the day along with everyone else, and much to his

surprise the police soon show up at his front door prepared to

arrest him for the bomb threat.

Seven months before the bomb threat, Mark texted his friend,

“Prom this year will be the BOMB!” Following the bomb threat,

Mark’s cellular service provider’s linguistics algorithms flagged

Mark’s text message for containing the words “prom” and “bomb,”

and Mark’s third-party service provider quickly handed this text

message off to the police.

211

Solely because of Mark’s

plaintiffs’ claims on summary judgment).

209. See id. (“[T]he message was no longer in transmission—it was in

temporary storage—and so under Konop could not be ‘intercepted’ within the

meaning of the Wiretap Act.”).

210. See id. at 407 (finding that there was no interception, just a

“misclassification [which] occurred when the recipient’s phone number was first

entered in the ‘To’ field by the user of the Apple product trying to send a message.

This misclassification occurred before any message was sent, not ‘during

transmission’ of a message”).

211. See JOSHUA A. T. FAIRFIELD, OWNED: PROPERTY, PRIVACY, AND THE NEW

DIGITAL SERFDOM 115 (1st ed. 2017) (outlining the process by which the

TEXT MESSAGES ARE PROPERTY 1109

seven-month-old text to his friend, he just became the prime

suspect in the bomb threat investigation. But how could the police

read Mark’s text messages if they had no probable cause to believe

he called in the bomb threat?

Text messages, a protected “paper” under the Fourth

Amendment,

212

may be searched and read by the police without

probable cause because of the third-party doctrine.

213

The Fourth

Amendment bans the government from conducting warrantless

searches and seizures.

214

This ban on government action seeks to

strike a balance between privacy and security.

215

In practice, the

Fourth Amendment splits law enforcement conduct into two

categories: police actions that require a warrant, and police actions

that do not.

216

The police do not need a search warrant to monitor

occurrences in public, but the police do need a search warrant to

monitor your home or private mail because of the Fourth

Amendment.

217

The Constitution bars the government from warrantlessly

searching content stored directly on your cell phone,

218

as it likely

contains more sensitive information than your entire home.

219

However, because the Fourth Amendment restricts government

action only under the state action doctrine, private third-party

actors (e.g., non-government companies and individuals) are not

government obtains text messages from third parties).

212. U.S.

CONST. amend. IV.

213. See F

AIRFIELD, supra note 211, at 115 (explaining the logistics of the

third-party doctrine).

214. See U.S.

CONST. amend. IV (“The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no warrants shall issue, but upon probable cause.”).

215. See Orin S. Kerr, The Case for the Third-Party Doctrine, 107 M

ICH. L.

REV. 561, 574 (2009) (“The Fourth Amendment’s prohibition on unreasonable

searches and seizures is premised on a balance between privacy and security.”).

216. See id. (“To implement that balance, the Supreme Court has created two

basic categories of law enforcement conduct: investigative steps that the Fourth

Amendment regulates and those that it does not.”).

217. See id. (comparing the actions the police need a search warrant for to the

actions the police do not need a search warrant for).

218. See Riley v. California, 573 U.S. 373, 401–03 (2014) (extending the

Fourth Amendment protection against search and seizures to data within a cell

phone).

219. See id. at 398 (2014) (“[A] cell phone search would typically expose to the

government far more than the most exhaustive search of a house.”).

1110 76 WASH. & LEE L. REV. 1073 (2019)

constitutionally barred from searching the contents of your cell

phone.

220

Thus, the Constitution restricts the government from

searching the contents of your cell phone, but there is no

equivalent law that restricts the private sector from conducting a

search that would be illegal if a government actor performed it.

This inconsistency has been termed the “third-party loophole,” or

the “third-party doctrine.”

221

Under the third-party doctrine, an individual who voluntarily

conveys information to a third party (e.g., a cellular service

provider) maintains no reasonable expectation of privacy.

222

Put

another way, if a consumer voluntarily reveals information to a

business, the consumer takes the risk that the business will give

that information to the government.

223

Normally, the government

cannot search something someone reasonably expects to be

private, but once someone conveys that interest to a third party,

their reasonable expectation of privacy is lost.

224

Thus, the

third-party loophole allows the government to freely obtain

consumer electronic communications from cellular service

providers that the government would not otherwise be able to

gather without a warrant.

225

Although courts historically applied the third-party doctrine

to a discrete set of records-related categories,

226

in modern-day

220. See Kiel Brennan-Marquez, Fourth Amendment Fiduciaries, 84

ORDHAM L. REV. 611, 613 (2015) (explaining that the Fourth Amendment does

not stop private companies from conducting searches and seizures).

221. See F

AIRFIELD, supra note 211, at 115–16 (discussing the third-party

exception to data searches and naming it the “third-party loophole”).

222. See Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (“This Court

consistently has held that a person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties.”).

223. See id. at 745 (explaining that because the petitioner voluntarily

conveyed information to a business, the “petitioner assumed the risk that the

information would be divulged to police”).

224. See United States v. Miller, 425 U.S. 435, 443 (1976) (“The depositor

takes the risk, in revealing his affairs to another, that the information will be

conveyed by that person to the Government.”).

225. See Brennan-Marquez, supra note 220, at 613 (discussing how the

third-party doctrine enables the government to get around the Fourth

Amendment’s warrant requirement).

226. See United States v. Suarez-Blanca, No. 1:07–CR–0023–MHS/AJB, 2008

TEXT MESSAGES ARE PROPERTY 1111

jurisprudence, the third-party doctrine has evolved into a single

test: if any information is disclosed to a third party, then that

information becomes public and it is not entitled to the protections

afforded by the Fourth Amendment.

227

This has led to a drastic

expansion of the government’s ability to obtain information.

228

analogy, the government previously used the third-party doctrine

to read the address written on the outside of a sealed letter; now,

the government uses the same doctrine to read the contents of the

letter itself.

229

Even if a user conveys information to a third party

confidentially and under the assumption that the third party will

use it for only limited purposes, the information nonetheless loses

its Fourth Amendment protection.

230

For example, the third-party

doctrine allows the government to, without a warrant, request the

contents of e-mails sent through the Google’s e-mail platform

“Gmail,” because Gmail users agreed to allow Google read the

contents of their e-mails.

231

Gmail users might expect that Google

will keep the contents of their e-mails confidential, but because

WL 4200156, at *8 (N.D. Ga. Apr. 21, 2008) (categorizing the third-party doctrine

as applying to six situations: “(1) bank records; (2) credit card statements; (3)

kilowatt consumption from electric utility records; (4) motel registration records;

(5) cell phone records; and (6) employment records”).

227. See Note, If These Walls Could Talk: The Smart Home and the Fourth

Amendment Limits of the Third Party Doctrine, 130 HARV. L. REV. 1924, 1931

(2017) (explaining that the modern third-party doctrine “has calcified into a

binary one, in which any information disclosed to a third party for any reason is

public and does not merit Fourth Amendment protection”).

228. See Kerr, supra note 215, at 587 (explaining how a common criticism of

the third-party doctrine is that “it gives the government too much power”).

229. See id. (comparing the government’s past use of the third-party doctrine

to the government’s current use of the doctrine).

230. See United States v. McIntyre, 646 F.3d 1107, 1112 (8th Cir. 2011)

(“[T]he Fourth Amendment does not prohibit the obtaining of information

revealed to a third party and conveyed by the third party to government

authorities, even if the information is revealed to the third party confidentially

and on the assumption that it will be used only for limited purposes.”).

231. See G

OOGLE, PRIVACY POLICY (2017),

https://www.google.com/intl/en/policies/privacy/google_privacy_policy_en.pdf

(“Our automated systems analyze your content (including emails) to provide you

personally relevant product features, such as customized search results, tailored

advertising, and spam and malware detection.”).

1112 76 WASH. & LEE L. REV. 1073 (2019)

Gmail users allow Google to read the contents of their e-mails,

232

the government does not need a warrant to access the e-mails.

233

Congress tried to define the scope of the Fourth Amendment’s

protections of electronic communications with the Stored

Communications Act (SCA).

234

However, the SCA merely provides

temporary Fourth Amendment protection of electronic

communications stored on third-party servers.

235

Under the SCA,

once text messages stored on a third-party server are greater than

180 days old, the government is no longer required to obtain a

warrant with probable cause to access the text messages.

236

Apple,

for instance, stores iPhone users’ iMessages and SMS messages on

its iCloud servers.

237

Consequently, after an iPhone user’s text

message is more than 180 days old, the SCA does not protect that

text message, and the government may compel Apple to disclose

the text message even though no warrant has been issued.

238

232. Id.

233. See Note, supra note 227, at 1931 (using Google as an example of a

situation in which “it is not difficult to imagine that one would want and expect

to be able to keep some information private in certain respects but not in others”).

234. See Achal Oza, Note, Amend the ECPA: Fourth Amendment Protection

Erodes as E-Mails Get Dusty, 88 B.U. L. R

EV. 1043, 1072 (2008) (“Congress passed

the ECPA in 1986 to draw clear lines as to where Fourth Amendment protection

extends with emerging technologies.”).

235. See id. at 1044–45 (explaining that digital messages stored on a third

party server are no longer protected by the Fourth Amendment’s probable cause

requirement under the Electronic Communications Privacy Act after they are

over 180 days old).

236. See 18 U.S.C. § 2703(a) (2012) (“A governmental entity may require the

disclosure by a provider of electronic communications services of the contents of

a wire or electronic communication that has been in electronic storage in an

electronic communications system for more than one hundred and eighty days by

the means available under subsection (b).”); id. (outlining how “[a] governmental

entity may require a provider of remote computing service to disclose the contents

of any wire or electronic communication” with delayed notice pursuant to Section

2705); id. § 2705 (describing the process the government can take to indefinitely

delay notifying the customer whose electronic communications the government

searched pursuant to § 2703(a)).

237. See Privacy, A

PPLE, https://www.apple.com/privacy/approach-to-privacy/

(last visited Mar. 19, 2019) (“iMessage and SMS messages are backed up on

iCloud for your convenience, but you can turn iCloud Backup off whenever you

want.”) (on file with the Washington and Lee Law Review).

238. See Oza, supra note 234, at 1044–45 (explaining how once electronic

communications are stored for greater than 180 days on a third-party server, the

TEXT MESSAGES ARE PROPERTY 1113

In sum, as we store nearly our entire digital lives on

third-party, cloud-based servers in one way or another,

239

the

third-party loophole has crippled the Fourth Amendment’s

protection over stored communications.

240

Although this paints a

bleak picture for consumers hoping to keep the government from

intruding into their private text message inbox, a potential stopgap

exists in an area of law much more ancient than the electronic

devices and data at issue: property law.

241

V. The Solution is Property Law

This Part argues that text messages constitute intangible

personal property.

242

This leads to two separate practical

outcomes: first, plaintiffs such as those in the Moore and Backhaut

cases would have been successful had they sued Apple under

property-based causes of action;

243

and second, text messages, as

property, should receive increased Fourth Amendment protections

against warrantless searches, thus closing the third-party

loophole.

244

A. Text Messages Are Property

Under Kremen, text messages constitute an intangible

personal property if they are (1) “an interest capable of precise

definition”; (2) “capable of exclusive possession or control”; and (3)

there is a “legitimate claim to exclusivity.”

245

electronic communications are no longer protected by the ECPA’s probable cause

requirement).

239. See Daniel Martin, Note, Dispersing the Cloud: Reaffirming the Right to

Destroy in a New Era of Digital Property, 74 W

ASH. & LEE L. REV. 467, 524 (2017)

(discussing the proliferation of information stored on the cloud).

240. See Oza, supra note 234, at 1044–45 (“As more of our personal

information is electronically stored on third-party servers, this exception

threatens to nullify the Fourth Amendment.”).

241. See F

AIRFIELD, supra note 211, at 114 (arguing that the law of property

trespass should pick up for third parties where the Fourth Amendment stops).

242. Infra Part V.A.

243. Infra Part V.B.

244. Infra Part V.C.

245. See Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2003) (outlining the

1114 76 WASH. & LEE L. REV. 1073 (2019)

First, text messages are an interest capable of precise

definition because the text within the message itself is precisely

worded for the recipient.

246

Although there is not a theoretically

finite amount of text messages in the same way there are a limited

amount of domain names or plots of land, each text message sent

is a unique interaction between the sender and receiver at the time

and place of its sending that cannot be recreated by others.

247

Second, text messages are capable of exclusive possession and

control because cell phone owners have sole possession of the text

messages they have sent and received on their own personal

devices.

248

A cell phone owner has exclusive possession and control

over the messages contained within their cell phone’s text message

application.

249

Finally, text message owners have a legitimate claim to

exclusivity over their text messages because encryption and phone

security features protect the messages and ensure the content of

the messages remains private between the sender and receiver.

250

Some courts, in addition to applying some form of the Kremen

test, also require the intangible personal property to have a basis

in a tangible property.

251

This means that the digital “thing” has to

have some sort of a connection to a physical object, but the owner

Ninth Circuit’s three-part test to determine whether a digital object constitutes

an intangible personal property).

246. See Moore v. Apple Inc., 309 F.R.D. 532, 536 (N.D. Cal. 2015) (explaining

the process by which a user sends a text message to the recipient).

247. See Kremen, 337 F.3d at 1030 (determining that a domain name is a

well-defined interest by likening it to “a share of corporate stock or a plot of land”).

248. See id. (finding that a domain name owner has exclusive possession and

control of the domain name because the domain name registrant alone makes the

decision on what domain to purchase).

249. Id.

250. See id. (“[R]egistrants have a legitimate claim to exclusivity. Registering

a domain name is like staking a claim to a plot of land at the title office. It informs

others that the domain name is the registrant’s and no one else’s.”).

251. See, e.g., Porters Bldg. Ctrs., Inc. v. Sprint Lumber, No.

16-06055-CV-SJ-ODS, 2017 WL 4413288, at *10 (W.D. Mo. Oct. 2, 2017) (“[M]any

courts have applied trespass to chattels to actions taken in cyberspace. But there

is no consensus among the courts. Some courts found personal intangible property

is chattel. Other courts concluded trespass to chattel, including a claim related to

intangible property, must have a connection to tangible property.”).

TEXT MESSAGES ARE PROPERTY 1115

need not have control over the physical object.

252

Although this

might be a tough element for other cloud-based forms of intangible

property, such as e-mails, to overcome, text messages easily

surpass this threshold. Text messages are connected to, and stored

directly on, the one object everyone has within an arm’s length at

all times: cellular phones.

253

And if an argument is made that the

text messages themselves are not stored within the phone but

rather stored on servers scattered around the world (the “cloud”),

it makes no difference, as the servers themselves are tangible

property.

254

Consequently, text messages constitute a form of intangible

personal property. The recent uptick in federal courts finding that

e-mails constitute personal property signals that it will not be long

until courts determine that text messages are property.

255

With

that in mind, would the iMessage plaintiffs have succeeded had

they brought claims based on the theory that their text messages

were their property?

B. Why the iMessage Plaintiffs Should Have Succeeded

The iMessage cases share similar facts: former iPhone users

sued Apple, alleging that Apple interfered with their receiving text

messages after they switched to a non-Apple cellular device.

256

The

iMessage cases even share the same judge, as Judge Lucy H. Koh

of the U.S. District Court for the Northern District of California

252. See Kremen, 337 F.3d at 1033 (“Assuming arguendo that California

retains some vestigial merger requirement, it is clearly minimal, and at most

requires only some connection to a document or tangible object—not

representation of the owner’s intangible interest in the strict Restatement

sense.”).

253. See Ellen Brait, Smash It, Shred It, Wipe It: The Tom Brady Guide to

Destroying Text Messages, G

UARDIAN (July 29, 2015, 12:47 PM),

https://www.theguardian.com/technology/2015/jul/29/tom-brady-deflategate-

destroy-text-messages-cellphone (last visited Mar. 19, 2019) (explaining how text

messages are stored both on cell phones themselves and also stored on cellular

service providers’ servers) (on file with the Washington and Lee Law Review).

254. Id.

255. Supra notes 118–126 and accompanying text.

256. See supra notes 138–144 and accompanying text (discussing the Moore

case’s factual background); supra notes 164–167 and accompanying text

(discussing the Backhaut case’s factual background).

1116 76 WASH. & LEE L. REV. 1073 (2019)

authored both opinions.

257

And, unfortunately, the iMessage cases

also share similar results: the plaintiffs lost at the class

certification stage.

258

Would the outcome have been different if the plaintiffs

pursued a trespass to chattels or conversion cause of action against

Apple? This subpart applies the intangible personal property

theory to the iMessage litigation’s facts: first, the court would

decide whether the plaintiffs had a valid trespass to chattels or

conversion claim;

259

and second, the court would determine

whether to certify the plaintiffs’ proposed class action lawsuit.

260

1. As Property, Text Messages Can Be Converted or Trespassed

Upon

As established, text messages constitute a form of property

under the Ninth Circuit’s precedent in Kremen.

261

The hypothetical

court would initially determine whether the text message property

was taken (conversion) or disrupted (trespass to chattels).

262

Using

the iMessage litigation as our facts, where Apple blocked former

iMessage users from receiving text messages after the former users

switched to non-Apple devices, the former iMessage users would

likely prevail (at least individually) on both a trespass to chattels

claim and a conversion claim against Apple.

263

257. See supra notes 138–144 and accompanying text (discussing the Moore

case’s factual background); supra notes 164–167 and accompanying text

(discussing the Backhaut case’s factual background).

258. See supra note 163 and accompanying text (discussing the Moore case’s

conclusion following the court’s refusal to certify the class); supra notes 208–210

and accompanying text (discussing the Backhaut case’s conclusion following the

plaintiffs’ unsuccessful appeal).

259. Infra Part V.A.1.

260. Infra Part IV.A.2.

261. Supra Part IV.A.

262. See Porters Bldg. Ctrs., Inc. v. Sprint Lumber, No. 16-06055-CV-SJ-ODS,

2017 WL 4413288, at *10 (W.D. Mo. Oct. 2, 2017) (explaining how before the court

can determine if a trespass to chattels occurred, the court must determine

whether e-mails fall within the definition of a chattel).

263. See supra notes 138–144 and accompanying text (discussing the Moore

case’s factual background); supra notes 164–167 and accompanying text

TEXT MESSAGES ARE PROPERTY 1117

Under California law, “a trespass to chattels claim lies where

(1) an intentional interference with (2) the possession of personal

property has (3) proximately caused injury.”

264

First, the courts in

the iMessage litigation found that the plaintiffs sufficiently alleged

that Apple likely intended to slow down or delay the messages sent

from iPhone users to former iPhone users because it was aware of

the problem and did not act to fix it.

265

Second, Apple interfered

with possession of the iMessage users’ property because Apple’s

actions delayed and prevented the former iPhone owners from

possessing and receiving their text messages.

266

The third prong, whether Apple proximately caused injury by

intercepting and withholding the text messages, is the most

challenging to establish. In California, specifically in the context of

a computer or digital system, “injury is adequately alleged where

the plaintiff pleads that the purported trespass deprived plaintiff

of the use of personal property for a substantial time.”

267

The

plaintiffs in the iMessage litigation never received the missing text

messages from iMessage users who attempted to text message

them after they switched to non-Apple devices.

268

Although Apple

could argue that its iMessage deregistration system takes effect

after forty-eight hours, the plaintiffs did not register for this

system before switching to non-Apple devices, and thus the

deregistration issue is moot.

269

(discussing the Backhaut case’s factual background).

264. Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1350–51 (Cal. 2003).

265. See Backhaut v. Apple, Inc., 74 F. Supp. 3d 1033, 1044 (N.D. Cal. 2014)

(“Plaintiffs have alleged that Apple knowingly, intentionally, and deliberately

intercepted text messages. On a motion to dismiss, these allegations are

sufficient.”).

266. See Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1195 (N.D. Cal. 2014)

(“Plaintiff alleges that Apple failed to disclose that use of iMessage and Messages

would result in undelivered messages if an iPhone user switched to a non-Apple

device.”).

267. Grace v. Apple Inc., No. 17-CV-00551, 2017 WL 3232464, at *11 (N.D.

Cal. July 28, 2017).

268. See Backhaut, 74 F. Supp. 3d at 1038 (“Following Adam Backhaut’s

switch, Plaintiff Joy Backhaut continued to send him text messages from her

iPhone. On Joy Backhaut’s phone, the word ‘delivered’ appeared under her

messages to her spouse, but Adam Backhaut never received those messages.”).

269. See Moore, 73 F. Supp. 3d at 1196 (“Plaintiff noticed she was not

receiving text messages she expected to receive from users of Apple devices. After

this initial discovery, Plaintiff contacted her service provider, Verizon Wireless,

1118 76 WASH. & LEE L. REV. 1073 (2019)

When Apple failed to deliver the text messages to the

former iMessage users in the iMessage litigation, it injured

the plaintiffs because it deprived them of the use of their

property for a substantial time.

270

Thus, because Apple

intentionally interfered with the former iMessage users’ text

messages and proximately caused injury, the plaintiffs in the

iMessage litigation would have likely succeeded in their

trespass to chattels claim against Apple.

To establish the tort of conversion, the iMessage

plaintiffs must show (1) that they owned the text messages;

(2) that Apple’s actions constituted a wrongful disposition of

a property right; and (3) damages.

271

As established above,

text messages constitute intangible personal property, so the

iMessage plaintiffs satisfy the first “property” prong. The

iMessage plaintiffs should succeed in proving that Apple’s

interception of the text messages constituted a wrongful

disposition of a property right, as the plaintiffs never received

their text messages.

272

And the plaintiffs will satisfy the

damages requirement because their cellular contracts

guaranteed the plaintiffs the right to send text messages, and

Apple’s interference with the text messages deprived the

plaintiffs of the “full benefit of [their] contractual bargain.”

273

Thus, the iMessage plaintiffs would have likely succeeded

had they brought a conversion cause of action against Apple.

which informed her that she needed to ‘turn off’ Messages on her old iPhone.”).

270. See Grace, 2017 WL 3232464, at *13 (finding that the FaceTime plaintiffs

satisfied the injury element because they sufficiently alleged “that Apple’s

disabling of FaceTime ‘impaired the condition, quality, or value’ of their iPhones”

(quoting Fields v. Wise Media, LLC, No. C 12-05160 WHA, 2013 WL 5340490, at

*4 (N.D. Cal. Sept. 24, 2013))).

271. See Kremen v. Cohen, 337 F.3d 1024, 1029 (9th Cir. 2003) (“To establish

[conversion], a plaintiff must show ownership or right to possession of property,

wrongful disposition of the property right and damages.”).

272. See Backhaut, 74 F. Supp. 3d at 1038 (explaining how a plaintiff never

received the missing text messages).

273. See Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1199 (N.D. Cal. 2014)

(“Plaintiff alleges that Apple’s interference with the receipt of her text messages

deprived her of the full benefit of her contractual bargain with Verizon

Wireless.”).

TEXT MESSAGES ARE PROPERTY 1119

2. The Final Step: Class Certification

Taking our hypothetical iMessage litigation to its conclusion,

the final step, following the iMessage plaintiffs’ successful

individual trespass to chattels or conversion claims against Apple,

would be the class certification stage. Judge Koh might well deny

class certification again, as she has turned Rule 23(b)(3) damages

class certification into a nearly impenetrable barrier for plaintiffs

to break through.

274

However, the iMessage plaintiffs’ novel

property-based causes of action, combined with Judge Koh’s

comparative leniency toward Rule 23(b)(2) injunctive class

certifications, gives the iMessage plaintiffs a realistic chance at

clearing the class certification hurdle.

275

Moreover, injunctive

relief would better serve the iMessage plaintiffs’ goals, as the court

could, in effect, force Apple to deliver the missing text messages to

former iMessage users right away.

276

As the court already found

that the iMessage litigants satisfied Article III standing, the court

would analyze whether the plaintiffs met the requirements for an

injunctive class under Rule 23(b)(2).

277

To establish an injunctive class under Rule 23(b)(2), the

iMessage plaintiffs must prove that they have suffered a “concrete

and particularized” harm and that they are “subject to a likelihood

of future injury.”

278

Although the plaintiffs in Backhaut failed in

274. See Philips v. Ford Motor Co., No. 14-CV-02989-LHK, 2016 WL 7428810,

at *23 (N.D. Cal. Dec. 22, 2016) (denying plaintiffs’ proposed classes because they

did not meet the Rule 23(b)(3) predominance requirement); In re Google Inc.

Gmail Litig., No. 13– MD– 02430–LHK, 2014 WL 1102660, at *12 (N.D. Cal. Mar.

18, 2014) (finding that the plaintiffs did not meet “their burden of demonstrating

that the proposed classes satisfy the [Rule 23(b)(3)] predominance requirement”);

In re High-Tech Emp. Antitrust Litig., No. 11– CV–02509–LHK, 2013 WL

1352016, at *587 (N.D. Cal. Apr. 5, 2013) (denying plaintiffs’ class certification

because the proposed class did not meet the Rule 23(b)(3) predominance

requirement).

275. See In re Yahoo Mail Litig., 308 F.R.D. 577, 601 (N.D. Cal. 2015)

(granting plaintiffs’ motion for an injunctive class certification under Rule

23(b)(2)).

276. See Robert H. Klonoff, The Decline of Class Actions, 90 W

ASH. U. L. REV.

729, 734 (2013) (explaining how injunctive claims can be the most important part

of a class action).

277. See Moore v. Apple Inc., 309 F.R.D. 532, 541 (N.D. Cal. 2015) (“In sum,

the Court finds that Plaintiff has satisfied the standing requirements under

Article III.”).

278. See Backhaut v. Apple Inc., No. 14–CV–02285–LHK, 2015 WL 4776427,

1120 76 WASH. & LEE L. REV. 1073 (2019)

their attempt to certify an injunctive class because they could not

prove a threat of future injury,

279

the plaintiffs in Moore obtained

internal Apple documents through discovery that proved Apple

was aware that “hundreds of former iPhone users reported

attempting deactivation but were still not receiving text messages

from Apple device users.”

280

And while the Moore case turned on

the issue of reading every single proposed class member’s contract

to determine whether there had indeed been a “harm,” the harm

question under a conversion or trespass to chattels theory would

be much simpler: Did the proposed class members fail to receive

text messages they were supposed to?

281

Yes.

282

Therefore, the

plaintiffs would have probably succeeded in certifying an

injunctive class because the plaintiffs could use Apple’s knowledge

of the problem to prove both present harm and future harm.

283

That is why, if iMessage plaintiffs brought either trespass to

chattels or conversion claims against Apple for Apple’s disrupting

their text message delivery, and if the court agreed that text

messages constitute intangible personal property, the result would

have been different. The plaintiffs would have certified their Rule

at *8 (N.D. Cal. Aug. 13, 2015) (outlining the requirements necessary “to establish

standing for injunctive relief”).

279. See id. at *8–9 (explaining how each of the Backhaut plaintiffs have

either started using iPhones again or begun receiving text messages from current

iPhone users, indicating that there was no risk of future harm).

280. See Moore, 309 F.R.D. at 537 (reviewing internal documents “apparently

discussing how Apple’s ‘so-called fixes’ failed to address the disruptions in text

message delivery”).

281. See In re Apple & ATTM Antitrust Litig., No. C 07–05152 JW, 2010 WL

3521965, at *13 (N.D. Cal. July 8, 2010), vacated in part, 826 F. Supp. 2d 1168

(2011) (explaining that certifying an injunctive class is appropriate if the

plaintiffs prove that, should they succeed on the merits, injunctive relief would be

“reasonably necessary and appropriate”).

282. See Moore, 73 F. Supp. 3d at 1196 (“Plaintiff is not the only former Apple

device user to encounter the problem of undelivered text messages. ‘[C]ountless’

former Apple device users have not received messages sent by Apple device

users.”).

283. See Moore, 309 F.D.R. at 542 (denying class certification because the

plaintiff’s proposed class included “individuals who did not pay or contract for text

messaging services,” and were thus not harmed by Apple’s withholding their text

messages).

TEXT MESSAGES ARE PROPERTY 1121

23(b)(2) injunctive class.

284

Apple would have then been forced to

begin delivering text messages sent to former iMessage users. And

current iPhone owners might even feel comfortable leaving Apple’s

“walled garden” ecosystem to try out a competitor’s cellular device

without fear that Apple will “lose” text messages meant for

them.

285

C. Why the Third-Party Loophole Will Begin to Close

Recall that the third-party loophole is the exception that

enables the government to obtain consumer information from

companies without a search warrant.

286

Although the Fourth

Amendment bars the government from searching the contents of

your cell phone without a warrant, the Constitution does not bar

the government from searching the same exact information when

it is stored on the cloud instead of your cell phone.

287

While courts

have begun closing the third-party loophole as it pertains to

e-mails sent through and stored with internet service providers

(ISPs), courts have not shown the same willingness to protect text

messages stored on the cloud and sent through wireless service

providers.

288

Classifying text messages as property closes the third-party

loophole for two reasons. First, text message owners manifest their

284. See In re Apple & ATTM Antitrust Litig., 2010 WL 3521965, at *14

(certifying the proposed injunctive class because the plaintiffs proved that

“injunctive relief from the challenged conduct would be reasonably necessary and

appropriate if Plaintiffs succeed on the merits”).

285. See supra notes 132–137 and accompanying text (describing iPhone

users who feel locked in to their device and unable to switch to another type of

cell phone because of iMessage).

286. Supra Part II.B.

287. See Riley v. California, 573 U.S. 373, 401–03 (2014) (extending

constitutional “probable cause” protection to information stored within a cell

phone).

288. See United States v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J.,

concurring) (“More fundamentally, it may be necessary to reconsider the premise

that an individual has no reasonable expectation of privacy in information

voluntarily disclosed to third parties.”); Warshak v. United States, 631 F.3d 266,

288 (6th Cir. 2010) (holding that because “a subscriber enjoys a reasonable

expectation of privacy in the contents of emails” sent or stored with ISPs, “[t]he

government may not compel a commercial ISP to turn over the contents of a

subscriber’s emails without first obtaining a warrant based on probable cause”).

1122 76 WASH. & LEE L. REV. 1073 (2019)

intent to prevent third parties and the government from reading

the content of their encrypted property.

289

This “intent to prevent”

is at odds with the third-party doctrine’s theory that an individual

who voluntarily conveys information to a third party has no

reasonable expectation of privacy.

290

Extending personal property protections to text messages

introduces a different legal theory relevant to determining

whether the text messages can be searched without a warrant: the

“container doctrine.”

291

Under the container doctrine, courts give

seemingly-abandoned personal property contained within a secure

container greater constitutional protections against warrantless

searches because the act of securing personal property shows the

owner’s express manifest intent to keep the property protected.

292

Text messages, an intangible personal property, are placed outside

of their owner’s control when they are stored on the cloud.

293

And

289. See David Kravets, Here’s A Good Reason to Encrypt Your Data, WIRED

(Apr. 23, 2013, 6:29 PM), https://www.wired.com/2013/04/encrypt-your-data/ (last

visited Mar. 19, 2019) (explaining that a “top reason” to encrypt data “is to keep

the government out of your hard drive”) (on file with the Washington and Lee

Law Review).

290. See Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (finding that one

has no expectation of privacy in information handed over to third parties).

291. See F

AIRFIELD, supra note 211, at 127 (“[O]utside of the owner’s

possession or control, the property can be considered abandoned, at least for

privacy purposes, and thus can be searched. This is the abandonment doctrine.

On the other hand, property placed inside containers has historically been given

much stronger protection from searches and seizures.”).

292. See United States v. Chadwick, 433 U.S. 1, 10 (1977)

By placing personal effects inside a double-locked footlocker,

respondents manifested an expectation that the contents would remain

free from public examination. No less than one who locks the doors of

his home against intruders, one who safeguards his personal

possessions in this manner is due the protection of the Fourth

Amendment Warrant Clause. There being no exigency, it was

unreasonable for the Government to conduct this search without the

safeguards a judicial warrant provides.

293. See F

AIRFIELD, supra note 211, at 128 (explaining how “[t]he very

purpose of [digital] assets is that they are [stored] away from their owners but not

out of their owners’ control”).

TEXT MESSAGES ARE PROPERTY 1123

remember that Apple stores copies of all iMessage and SMS

communications on the cloud.

294

AT&T and Verizon do too.

295

The classic example of property receiving greater protections

against warrantless searches is a padlocked box, whose owner

manifested an intent to keep the property protected by locking the

box.

296

By analogy, a text message owner should receive

heightened protections against warrantless searches because the

owner, by “locking” the contents of the text message with

encryption technology, has manifested an intent to keep the

property protected, even if Apple stores a copy of the text message

on an iCloud server outside the possession of its owner.

Text message users rely on iMessage’s end-to-end encryption

to keep their text messages secure both in the cloud and in

transit.

297

Also, most text message users rely on their smartphone’s

lock screen to keep unwanted intruders out of their text message

inbox.

298

Encryption, coupled with smartphone security features,

serve as the text message user’s manifest intent and expectation

that their text messages be secure against unwanted intrusions.

294. See Privacy, supra note 237 (“iMessage and SMS messages are backed

up on iCloud for your convenience, but you can turn iCloud Backup off whenever

you want.”) (on file with the Washington and Lee Law Review).

295. See AT&T Privacy Policy, AT&T,

http://about.att.com/sites/privacy_policy/terms#collect (last visited Mar. 19, 2019)

(“We may collect different types of information based on your use of our products

and services and on our business relationship with you. Examples of this might

include . . . the number of text messages sent and received . . . [and] calling and

texting records.”) (on file with the Washington and Lee Law Review); Privacy

Policy, V

ERIZON (Jan. 2018), http://www.verizon.com/about/privacy/full-privacy-

policy (last updated April 2018) (last visited Mar. 19, 2019) (“We collect

information when you communicate with us and when you use our products,

services and sites.”) (on file with the Washington and Lee Law Review).

296. See Chadwick, 433 U.S. at 10 (“By placing personal effects inside a

double-locked footlocker, respondents manifested an expectation that the

contents would remain free from public examination.”).

297. See About iMessage and SMS/MMS, A

PPLE (Sept. 17, 2018),

https://support.apple.com/en-us/HT207006 (last visited Jan. 28, 2019) (explaining

the security differences between iMessages and SMS text messages) (on file with

the Washington and Lee Law Review).

298. See Americans and Cybersecurity, PEW RES. CTR. (Jan. 26, 2017),

http://www.pewinternet.org/2017/01/26/americans-and-cybersecurity/ (last

visited Mar. 19, 2019) (outlining how 72% of smartphone users “use a screen lock

or other security features” to secure their devices) (on file with the Washington

and Lee Law Review).

1124 76 WASH. & LEE L. REV. 1073 (2019)

A text message owner’s plainly evident intent to prevent

unwanted intrusions during transit and storage does not square

with the third-party doctrine’s legal fiction that the same text

message owner has no reasonable expectation of privacy if she

sends her text message through a cellular service provider. The

opposite is true. A text message owner’s intent to prevent

unwanted intrusions into her text message property proves her

reasonable expectation of privacy.

299

Consequently, as the text

message owner retains her reasonable expectation of privacy with

regard to the text message’s content during transit and storage,

the third-party loophole closes because the government cannot

collect information which has not been disclosed to the third party.

Second, text messages, as a form of property and not merely

confidential information, are encrypted to prevent third parties

from viewing the text message’s content.

300

Instead of traveling

through cyberspace as an open book, the encrypted text message

travels under lock and key, and thus the content within is at no

point conveyed to the cellular service provider.

301

Because a

third-party service provider never sees the content hidden by

encryption, the text message’s content is never revealed to the

service provider.

If the content remains hidden behind encryption, then the text

message user has not voluntarily conveyed the content to the

provider because the provider does not see the content.

302

As well,

the service provider cannot claim it saw the text message’s content

confidentially because it never saw the content at all.

303

Cellular

299. See Warshak v. United States, 631 F.3d 266, 288 (6th Cir. 2010)

(explaining that the government may not collect e-mails under the third-party

doctrine because the e-mail users retained their reasonable expectation of

privacy).

300. See Kopfstein, infra note 304 (explaining why Apple encrypts iMessages).

301. See id. (describing iMessage’s end-to-end encryption and how it (in

theory) means that only the sender and the recipient will read the message’s

content).

302. See Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (“This Court

consistently has held that a person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties.”).

303. See United States v. McIntyre, 646 F.3d 1107, 1112 (8th Cir. 2011)

(finding that one’s expectation of confidentiality with regard to information

shared with third parties has no bearing on the information’s Fourth Amendment

TEXT MESSAGES ARE PROPERTY 1125

service providers are not meant to read any of the text message’s

content—even if they do anyway—by virtue of the text message

remaining sealed (encrypted) in transit and during storage.

304

So,

because a text message owner does not convey the content of the

text message to the cellular service provider, confidentially or

otherwise, the government cannot get the text message’s content

using the third-party loophole.

305

Just as the government cannot open up a sealed letter and

read its contents without a warrant, the government should be

prevented from opening up encrypted text messages, whether

stored or in transit, without a warrant.

306

Although the framers

had sealed letters in mind when adopting the Fourth Amendment,

there is hardly a more appropriate modern analogy than an

encrypted text message.

307

VI. Conclusion

Courts have yet to consider whether text messages constitute

intangible personal property, but they will soon. As our lives

protections).

304. See Janus Kopfstein, Apple Can Still See Your iMessages If You Enable

iCloud, VICE (Jan. 22, 2016, 4:10 PM),

https://motherboard.vice.com/en_us/article/78kv7b/psa-apple-can-still-see-your-

imessages-if-you-enable-icloud (last visited Mar. 19, 2019)

It turns out the privacy benefits Apple likes to talk about (and the FBI

likes to complain about) basically disappear when iCloud Backup is

enabled. Your messages, photos and whatnot are still protected while

on your device and encrypted end-to-end while in transit. But you’re

also telling your device to CC Apple on everything. Those copies are

encrypted on iCloud using a key controlled by Apple, not you, allowing

the company (and thus anyone who gets access to your account) to see

their contents.

(on file with the Washington and Lee Law Review).

305. See id. (“Apple can’t read messages sent between Apple devices because

they’re encrypted end-to-end, decipherable only by you and the intended

recipient.”).

306. See United States v. Ackerman, 831 F.3d 1292, 1308 (10th Cir. 2016)

(“[T]he framers were concerned with the protection of physical rather than virtual

correspondence. But a more obvious analogy from principle to new technology is

hard to imagine and, indeed, many courts have already applied the common law’s

ancient trespass to chattels doctrine to electronic, not just written,

communications.”).

307. Id.

1126 76 WASH. & LEE L. REV. 1073 (2019)

become more and more centered around our smartphones, text

messages will displace e-mails as the primary means of electronic

communication (if that hasn’t already happened). We currently do

not have an effective means of recourse available should our

cellular providers purposefully block or delete our text messages.

The answer lies in property law. Text messages constitute

intangible personal property, and text message owners can,

therefore, sue using traditional property law causes of action such

as trespass to chattels or conversion. Although there have been few

legal challenges brought by aggrieved text message owners, they

have been universally unsuccessful in causing cellular providers to

change their ways.

308

Had these aggrieved text message owners

sued under a property-based cause of action, they would have

successfully enjoined the cellular providers from continuing to

mess with their text messages.

Moreover, a judicial determination that text messages

constitute intangible personal property will close the third-party

loophole. As it stands, the government is free to search the contents

of our text messages because we have voluntarily conveyed the

information to our cellular service providers.

309

However, if courts

find that text messages constitute a form of property, an encrypted

text message starts to look more and more like a sealed letter than

it does public information. The framers designed the Fourth

Amendment to prevent unwarranted searches and seizures of the

dominant form of communication of their day: sealed letters.

Consequently, it makes sense to extend the Fourth Amendment’s

protection only to the dominant form of communication today:

encrypted text messages.

308. Supra Part IV.A.

309. Supra Part IV.B.