By Joy Deep, Marketing DirectorMost people don’t think twice about sending a text message. Whether it’s an innocuous dinner plan or a subtle hint to insider trading information, people do not necessarily assume that what they send in a text message may actually come back to haunt them in a court case. Of the 18.7 billion texts sent in a day, the vast majority of them probably are innocent. But, the ones that aren’t can serve as valuable evidence in a court case assuming they are preserved properly and entered into evidence legally.
Text messages are part of a new generation of digital evidence that is now commonly used in many legal cases. In fact, the discovery process during which both sides in a court case gather and provide evidence, now includes what’s known as eDiscovery (or electronic discovery) that takes into account any electronically stored information including text messages.
It is therefore important that companies have a way to capture and store text messages that may need to be used as evidence in court cases or legal investigations. In order to save text messages for court usage, they have to be preserved in a way that can be authenticated and not tampered with.
In this article, we will explore how text messages can be used in court and the best practices in digital evidence storage that companies should adopt.
Text Messages as Digital Evidence
Digital evidence is defined as “information stored or transmitted in binary form that may be relied on in court. It can be found on a computer hard drive, a mobile phone, among other places.” While a text message can be considered as digital evidence, there are certain requirements that must be met in order for it to be legally admissible in court.
The question – are text messages admissible in court? – is not as straightforward to answer as it might seem. Because it is fairly easy to fake a text message exchange. Procedures must be followed to ensure that any text messages entered into evidence have been authenticated and are proven to be legitimate. Text messages can also be deleted or altered, therefore stopgaps must be put in place to ensure that those messages to be used as evidence in court are not altered in any way or destroyed.
Properly capturing and storing employee text message communications with clients as a matter of routine will protect companies from running into trouble in the event of an investigation or legal action. In many industries – especially finance, insurance and other highly-regulated fields – firms are legally required to capture and archive all electronic communications anyway, so having a digital evidence storage system should be a given. Once the information is already stored, it’s just a matter of ensuring that it is properly authenticated and able to be admitted as evidence if needed.
How to Authenticate Text Messages for Court
Just because a person receives a text that appears to have been sent from a particular phone number does not mean the owner of that number is actually the one who sent that text. Someone else may have had access to their phone and written the text, for example. This is why it’s necessary to first authenticate text messages before they can be accepted as evidence.
In the United States, each state’s court system can establish its own rules for the authentication of text messages, but most seem to be following the suggestion of the American Bar Association that only a low burden of proof is required which can generally be fulfilled by witness testimony and/or certain characteristics of the message such as the phone number it was sent from.
There is typically a two-step process to which includes:
- A witness testifying that the print-outs or screenshots of the text messages are, in fact, true to what was received.
- A witness testifying to the identity of the person who is purported to have sent the message in question.
Once these steps have taken place, text messages can be entered into court as digital evidence.
Can Screenshots of Text Messages be used in Court?
Given the increase in types of data sources that are being used in the discovery process, the rules themselves for what is admissible and what isn’t are continually evolving. The case of the United States vs. Michael Avenatti in September 2021 set precedent for the allowance of screenshots of text messages for court as long as they are authenticated in the same way that the actual messages would be.
How to Preserve Text Messages for use as Evidence
In order to avoid the stress of getting text message records at the last minute if the need arises, it is important for companies to have a process in place to deal with the collection and preservation of text messages. There are 3 important elements to this process:
Drive Imaging
It is very important not to manipulate the original data found on a mobile device, as that may inadvertently delete or change important metadata that could be useful evidence. Therefore, a forensic analyst should be hired in order to create an exact duplicate of the drive. The forensic analyst’s expertise is needed as they have the skills to recover deleted files that might also prove relevant to a case.
Hash Values
If you were to ask a forensic analyst what’s the most critical aspect of digital evidence, they are likely to talk about hash values. These unique values are assigned to each image of the original data that is created in order to be analyzed. Whenever there is any modification to a particular file, a new hash value is generated, making it easy to tell whether evidence has been tampered with.
Chain of Custody
Throughout the entire process of getting text message records off a device, the forensic investigators should document each step they take. Once the messages are stored, there must also be a clear record of each and every person who had access to them and any actions they took. This chain of custody is important to prove that the evidence was never unattended and that anyone who had access to it was approved to do so. Without a proper chain of custody, digital evidence storage can be deemed insecure and the legal value of the evidence can be called into question.
Stay Prepared
Companies must always be prepared for the unfortunate reality of court cases and legal action, whether the claims are well-founded or not. Rather than waiting until the situation arises and then worrying about questions like are text messages admissible in court, it’s better to stay on the safe side and be prepared.
LeapXpert’s communication platform enables companies to capture and archive all client conversations using native text messaging and other third-party apps. This helps companies remain compliant with record-keeping regulations while also ensuring that they are ready to submit text messages as evidence in court.
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