SMS SOS: Think Before You Text

Text messages are becoming an increasingly common form of communication, even in remote areas like Humboldt County, and this can have a profound effect on both civil and criminal lawsuits.  “Smart” phones and overall increases in phones’ data capacity are creating both headaches and treasure troves for litigation attorneys.   As a cell phone user, you should know that if you are thinking of filing a lawsuit, or may have to defend against one, your text messages could be available to the opposing party and/or the court.  This may even include messages you have deleted from the phone.

In some ways, the law in this field has not yet caught up with available technology.  For example, there is no clear rule in California yet as to whether a police officer may search your phone upon arrest.  This will likely depend on the reason for arrest and other circumstances at issue.   However, in courts outside California, police officers have been granted this right.  See, e.g., U.S. v. Engler (8th Cir. 2008) 521 F.3d 965; U.S. v. Finley (5th Cir. 2007) 477 F.3d 250.  In criminal cases, a defense attorney can provide further advice regarding your particular case, but as a general rule, notification laws that sometimes protect communications in civil suits (or at least give you the opportunity to protest disclosure) do not apply to criminal cases.  See Pitchess v. Superior Court (1974) 11 Cal.3d 531; 18 U.S.C.A. § 2703(b)(1)(A).  Under federal law, government entities may require a cell phone provider to specifically preserve and produce any messages you send from your phone (See, e.g. 18 U.S.C.A. §§ 2702, 2703).

Even when a cell phone user deletes his or her messages, it is possible that the cell phone provider will have the message stored on a server or that they will be recoverable from the phone itself.  However, time is of the essence in obtaining such records.  Text storage practices of various cell phone carriers vary from one provider to the next.  If you want to access messages you sent or received, you should notify your attorney immediately of the existence of the messages so that they can make attempts to preserve the evidence.  This is because messages are only stored for a matter of days and even law enforcement may be unable to obtain messages after they are purged.

Also, whether the messages can be retrieved from the handset itself after being deleted depends on whether you use a removable SIM card.  A computer data recovery expert might be able to assist you (or the opposing party in a lawsuit) with retrieving deleted messages from a cell phone that has a SIM card, but not if the messages were only ever stored on the phone itself.  Again, this can also be a costly and technologically risky process.

Even in cases where text messages are recovered, they may not be admissible in court.   A good attorney will be familiar with the legal evidentiary objections that can be raised to such evidence.  These include objections based on relevance, authenticity, hearsay, and the prejudicial effect of the evidence.  In addition to such legal strategies, a cell phone user’s prudence is always advisable and the moral of this story is to think before you text… and before you delete.