Text Messages: Deleted, Not Dead, Your Casual Comments and Stupid Jokes Could Surface Years Later

Text messages last a long time... .

There was recently a discussion among Canadian criminal lawyers about whether or not text messages, or sms's, could be retrieved after being deleted on the sending and receiving mobile devices (cellphones).

The answer is yes:

"There exists a misguided notion among everyday users that text messages are temporary and fleeting like an unrecorded telephone call.

However, the central stop a text message makes between sender and receiver often leaves a lasting impression even if the content was deleted on both the sending and receiving devices.

Text messages are handled by intermediate devices in the path between sending and receiving units, i.e. cell phones. These intermediate devices, called short message service centers, can have the ability to store the data for time periods longer than what is necessary to transmit the message.

While some carriers have recently reported in response to inquiries inspired by the Kilpatrick flap that they retain message content for a short period of time for the purpose of delivery – some citing 72 hours as the maximum – recent court subpoenas and warrants demonstrate that text message retrieval can occur weeks and months after the send dates.

Three recent federal cases have used text message content retrieved from wireless carriers. In United States v. Jones, an illegal drug activity case from 2006, two unnamed wireless carriers responded to a warrant to deliver the content of text messages transmitted by the defendants' cellular telephones.

These text messages covered a time period approximately a year prior to the warrant.In a recent wire fraud case, United States v. Jackson, a court order under 18 U.S.C. § 2703 was used to compel Verizon Wireless to supply text message content about four months after the messages were sent.

In United States v. McCreary, subpoenas were served on MCI (now SkyTel) in 2002, 2003, and 2004 to obtain text messages exchanged by the defendants back to January 2001. MCI returned 1075 pages of text.

Text messaging is clearly a fixture in the spectrum of today's business, government, and personal communications.

With over 262 million wireless subscribers sending over 2.5 billion text messages per day, the increased use of text message evidence in court proceedings is inevitable. What is less clear is whether the wireless industry will respond by implementing data retention policies. After more high-profile cases emerge that involve the use of text message evidence, providers may feel pressure from their customer base to define policies and disclose them.

Text and instant messaging came into popularity by the social use of teenagers and young adults but has quickly bridged the gap to also become an efficient tool for professionals and businesspeople."

Full article here:

http://law.case.edu/student_life/organizations/tilj/content.asp?id=289

James Morton