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

By Howden, Spence | Washington and Lee Law Review, Spring 2019 | Go to article overview

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


Howden, Spence, Washington and Lee Law Review


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

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."1 Jane would be surprised to learn that she cannot successfully sue Apple for deleting her text messages because her text messages are not considered personal property. Because text messages are not a "property," she would not be able to successfully bring a conversion or trespass claim, despite the elements of both claims being met.2 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.3

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. …

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