In a recent and ongoing matter, I have come up against something I did not know even existed, the presence of text message anonymizers that apparently allow a user to send a text message to a phone with a fake phone number attached – in my matter, the phone messages were purported to have come from a new spouse to one of the children and then from that child to the new spouse (with inappropriate messages ensuing).
The family court in particular, but the civil and criminal courts as well, are going to have to examine this as a potential roadblock to the admission of text messages as evidence in the courtroom. In my practice, I have watched as lawyers attempt to deal with the submission of text messages as evidence. There has been some evolution from the need to actually submit the phone as evidence in the matter being heard – to demonstrate that the messages have been received on the phone – to taking screen shots of the messages on the phone. Working with the mobile carriers to subpoena text messages has neither been easy nor cheap, so lawyers in relatively lower budget dissolution cases have been trying to find workarounds that allow their clients to keep their phones.
In general, text messaging has been a very effective tool to reduce conflict between parties in dissolution actions. The parties know, and some judges will actually caution them at the outset of a case, that their phones may be plugged in to the overhead projector and text messages displayed for the entire courtroom to read, the theory being that if the message is on the phone, it must have been sent/received by the numbers displayed on the phone.
A text message anonymizers program such as “text r us” or “text anonymizer”, both websites, allows a party to send fake messages. When conducting research for this blog post, I tried to register and send test messages to my own phone using the fake number 805-555-5555. The sites both claimed they were “down due to abuse.” Hopefully, the site owners are rethinking the way that messages are sent and received given the great potential for identity theft and other criminal actions.
In my ongoing matter, an entire series of messages – pages and pages worth – was submitted to the court as evidence attached to an affidavit from one of the parties that claimed the other party was using the anonymizing service. If admissible, the evidence is pretty inflammatory in both directions.
What should the court do? Will simple affidavits to the effect of “I did not use a text anonymizer” be enough?
I don’t think so. If text messages, like emails, can be hacked or faked, the court is going to have to take a long hard look at the chain of custody of evidence and return to looking at such evidence with suspicion, requiring a higher burden of proof regarding that evidence. The evidentiary standards in the family court have already been drastically reduced in an effort to get evidence before the court with the minimal amount of cost to the parties. However, the ability to cheaply (free) to fake or hack emails and text messages creates a real burden on the lawyers and the parties and creates an opportunity to fool the court.
My understanding is that the text message anonymizers websites will allow parties to track IP numbers to show not only that emails and text messages were fake but who faked them. But how do we provide such evidence? If the bar is going to need to retain tech experts to come to testify to the court about how anonymizers work and the IP addresses of the senders, the cost of getting text evidence into the court is going to drastically increase. On the other hand, I think it is important that we acknowledge the degree to which text messaging and the possibility that texts will be displayed in the courtroom, has reduced conflict in dissolution actions.
My suggestion is that, for the time being, court treat all text message and potentially email messages with deep caution given the relative ease for faking the origin of a text or email. I have not yet tried it, but my understanding is that some of the anonymizing programs actually have apps that can be downloaded to smart phones so that when they are sent they look like actual text messages sent from actual phones.
I guess we should have known we were headed in this direction.