Text Messages Can Prove Infidelity

He said it is common for spouses to check text messages, then use the same device to send one and find out more information about the person who responds. That can mean that all of the messages stored on the device are no longer admissible because it is impossible to know if the snooping spouse sent one message or many, he said.

“Sometimes you will see a spouse e-mail from the device after seeing the e-mail or text,” Ward said. “Right there, that blows the case. Who’s to say that out of those 50 messages, who’s to say that 25 are not from the spouse?”            

The stakes are higher when the messaging device is owned by an employer, Ward said.  If a spouse accesses information in the device, he or she could face federal charges, he said. "Technically, you couldn’t have access to that because it would be owned by his company or her company,” Ward said.

If the device is being paid for by marital assets, then it might not be as risky, Ward said. But devices like Blackberrys are usually used for work. And if the information is routed the through an office server, any messages can be considered company property.          

Ward knows of one case in which a wife had the hard drive of her husband’s laptop examined, claiming it was marital property.  However, the court found in the husband's favor, since the laptop was paid for the husband's business and was considered aq corporate asset. The woman corrupted the evidence by her own curiousity. “How do I know that this was originally there, and you didn’t add to it?”  Ward asked.            

To add to the confusion, the courts are just beginning to deal with these legal situations. Some federal courts have accepted programs and procedures to obtain the information during what's called discovery, or the fact-gathering process for trial. But some judges have interpreted the statutes in different ways, so -- at the moment -- there is no uniform practice or case law as precedent for text messaging cases, Ward said.


LEGALLY ACCESSING TEXT MESSAGES              

To walk the legal line, Ward and his investigators keep a strong chain of custody when gaining access to evidence like text messages and e-mails. They document who looked into the evidence when and how they did it. They usually put images of the hard drive on a separate system so that they never touch the original information.            

It can be complicated trying to find text messages on phones and pager devices, but it's possible. Ward said his company can find information on computer hard drives and histories of text messages or e-mails, even after they have been deleted. Every device has a different connection and storage system, so you can find the information if you know how those work, he said. Forensic field kits also can help gain access to information on computers, phones or hand-held devices, Ward said.


SAVING CELL PHONE TEXT MESSAGES   

Many people try to access text messages by asking their phone carriers for backup messages, but cellular phone companies say they cannot recover or transcribe text messages. Aside from the privacy protections that apply to the information they hold, most  phone companies delete their store of text messages within a few days.

For example, AT&T Wireless stores text messages for 48 hours, then deletes them, said Mark Siegel, the executive director of media and industry analyst relations for the company. He didn't know of any way to transcribe saved messages. When presented with questions about how to access text messages, a T-Mobile spokesperson said company representatives wouldn't discuss the topic. 

Several computer programs can download information stored on a cellular phone’s subscriber identity module or SIM card, a memory card that identifies users on a particular network. SIM card data recovery programs can be used to restore deleted text messages and telephone numbers. The SIM card is placed into a SIM card reader, and the information can be downloaded onto a computer.

Ward cautions anyone who does this to be careful, because of the legal issues that apply to accessing text messages. To find out more about your state's laws on the issue, you should consult an attorney. Ward discourages spouses from looking through electronic devices for proof of infidelity, but that may ruin potential evidence. “In general, to do something like that is pretty dangerous,”  Ward said.      

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. 


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