Checking Text Messages

    Text messages are becoming more and more important in divorce proceedings, according to a recent study from the American Academy of Matrimonial Lawyers. The study showed that text messaging was one of the top three most common forms of electronic evidence.

That begs the question – how do you get access to text messages? There are generally two ways to do it: read them directly off the cell phone, or try to extract them from the phone, even if they have been deleted. Reading them from the handset is, by far, the easiest way to go about it.

All of this text snooping can be legally perilous. Depending on the laws in each state, it may be illegal to go through someone’s cell phone. And the act of snooping may also make the information inadmissible in court.

John Simek, vice president of Sensei Enterprises, Inc., a Virginia computer forensics company, said that a very general rule of thumb is that if someone has a pin number as a block to directly accessing his or her cell phone, then it is probably unlawful to snoop. It’s like the difference between an open briefcase, and one that is locked, he said.  “Then there is an expectation of privacy, and you’d better not be blowing by it,”  Simek said.  


CELL PHONE COMPANIES DON’T STORE MESSAGES  

Even the cell phone companies express an inability to save or extract text messages. A T-Mobile spokesperson said that the company can’t discuss the issue at all. Mark Siegel, the executive director of media and industry analyst relations for AT&T Wireless said that he knows of no way to save a text message, other than just not deleting it from the hand set. He said AT&T stores text messages for 48 hours to ensure they are delivered, and then deletes them.            

Debra Lewis, from Verizon Wireless, agreed that the only way to keep a message is to keep it on the handset. She said that her company does not keep text messages on their servers for any length of time. However, if there are messages that are retrievable, a subpoena is required to get copies of them.            

The text and photo messages cycle through the servers, and then are no longer available if the phone company does not store them, Lewis said. If Verizon gets the court order in time, it will save the messages for a bit of time. “We don't disclose the length of time (except to law enforcement), but it's not lengthy and can vary -- but you can think of it as days not weeks or months,”  Lewis said.            

The company often works with law enforcement agencies to get calling records and text messages for use in investigations, she said. But for the average customer, the best chance of saving a message is not deleting it, she said. 
           

PROS MAY BE ABLE TO CRACK THE SYSTEM              

Simek said that in his experience, companies like Verizon have text messages on their servers for about 14 days. He said that the time frame has been revealed in court cases when law enforcement agencies have retrieved text messages for use in investigations. But, he cautions, the average cell phone customer will have a nearly impossible time getting access to text message records without already having a case in the judicial system, and a subpoena in hand. “They will not do anything if you have not filed an action,” Simek said. “They’ll just laugh at you.”            

He also said that the best chance to get any text message information is by searching the handset. But if the text messages have been deleted, then that is when the professionals come into play. Simek said his company has seen in increase in requests for access to text messages. But getting access to the text messages, especially when they have been deleted, can be complicated, Simek said. “Normally it’s pretty volatile, these text messages,”  Simek said.            

If someone deletes their text messages, a computer forensics company can try to retrieve the messages using several programs, such as Sim Card Seizure, Paraben Device Seizure, or BitPim. He said there are thousands a variations in the way his company accesses each phone, depending on the maker of the phone, the connecting components, and the memory storage. It also depends on how the phone overwrites its memory when messages are deleted.

The extraction software may be able to get the text, but not the date and time it came in, depending on how the phone works, Simek said. Some of the programs may also act like cameras that take pictures of the screens inside the phone. “The tools that you use to extract the data have to be pretty robust,”  he said.            

When the company gains access to the text messages, and can save them for a client, Simek said, it can then testify in court as to what information the messages contain. That alleviates the potential for inadmissibility, he said. “We become the impartial party,”  Simek said.  


FOR MORE INFORMATION:

Read stories, blogs, expert advice and community discussion about divorce and text messages, catching a cheater and using a private investigator to find out out if your spouse is having an affair.


Michele Bush Kimball has a Ph.D. in mass communication with a specialization in media law. She has spent almost 15 years in the field of journalism, and she teaches at American University in Washington, D.C. She recently won a national research award for her work.