In Part I, I began to discuss how the Pennsylvania Superior Court decision in Commonwealth v. Koch, in ruling that the state had failed to authenticate text messages coming from and going to the defendant’s cell phone, even though the defendant had admitted that the phone was hers. We reviewed the case law on which the court had relied and noted how the court conflated cases involving emails and instant messages, which can be sent to or received at any computer one can use to sign onto an account (and thus the fact that the emails or instant messages were found to reside on a certain device is of less significance), with text messages, which must be sent from or to the user’s cell phone. We also conjectured that the court reached its result because it found the defendant, who lived with her boyfriend and brother — more likely the possessors and sellers of the marijuana found in the residence — sympathetic.
In part II, we will discuss how the court specifically addressed the technical differences between text messages and emails and how it diminished the significance of that difference.
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