The uncharted territory of text message-based digital forensics

Digital forensics has in many ways moved to the forefront of legal discussions in recent years, as more businesses continue to experience eDiscovery proceedings. Preparation is key in this process, as failure to have a strong contingency plan in place when a court requests disclosure of digitally stored information can lead to much higher costs, and more painful headaches.

The rapid adoption and increasing use of new personal devices in the office, such as smartphones and tablets, bolstered by the advent of bring your own device (BYOD), has made it even harder to keep corporate data under control. Likely one of the hardest types of communication to manage during an electronic litigation proceeding is text messages sent through cell phones.

Navigating digital forensics in text messaging

The Financial Review recently explained some of the difficulties associated with digital forensics that target cell phone text messages, including the fact that they often do not disappear, regardless of a user’s efforts to delete them. Citing a trail that involved parliamentary speaker Peter Slipper, the news provider explained that experts can find the any text messages on a phone using digital forensics.

The expert in this case likened the ‘delete’ button on a smartphone to being more like a ‘hide,’ button, as those versed in eDiscovery practices can easily bring back deleted data. The Financial Review cautioned public officials, as well as high-ranking executives in major international companies, should be a bit more mindful of the types of discussions they are having over email and text messaging, as all of these communications can be found and used against them in the legal process.

“This can be share price-impacting information, because deals can be made via an SMS [short message service] that are worth a lot of money,” one expert told the news provider. “The audit trail is all important when it comes to being able to report that due process has been followed, so if people are using electronic communications, then they must expect that there is a record.”

This raises the question of what to do with communications that are not wanted. The Financial Times explained that users need to go beyond simple operating system-based memory clear options, as even these can leave traces of data which can then be retrieved by the right digital forensics. Further, maliciously deleting text messages to hide the truth from prosecutors can be even more dangerous, leading to crushing sanctions and penalties.

Precedence set in some states

Much like the litigation process as a whole, using text messages as evidence in legal proceedings is still in its fledgling stages, while lawmakers continue to set new statutes to govern the use of digital forensics for these specific purposes. One recent case that involved text messaging in a court proceeding took place last year in Pennsylvania – in the Commonwealth v. Koch, No. 1669–MDA–2010, 2011 Pa. – involving an alleged drug user.

Amy Koch was being tried on drug charges, when prosecutors used a variety of different communications, including text messaging, to get a conviction. The Pennsylvania Superior Court ruled then that text messages were inadmissible, and demanded any prosecution of defense attorney provide ‘circumstantial evidence’ when including text messages in the trial.

This was largely caused by the defense’s ability to provide a wealth of witnesses who testified that Koch’s phone had been used by several other individuals. While Koch was convicted on the charges, the precedence was still set by the Pennsylvania Superior Court regarding digital forensics in the SMS and text messaging realm. As a note, Koch’s attorneys recently succeeded in getting a new appeal with the Pennsylvania State Supreme Court, which will likely also dive into the text message-based evidence used in the original case.

Proactive defense is the best offense

Regardless of whether a firm is involved in government contracting or selling keepsakes to merchants, having a strong eDiscovery plan in place is an essential piece of any business continuity strategy. Electronic litigation proceedings, when not managed by reputable professionals, can spell the end for any company. By reaching out and beginning communications with a proven litigation solutions firm before a proceeding, employers and their employees can get the education they need to adequately defend themselves.

With respect to text messages used in legal proceedings, the regulations will likely continue to evolve for a while longer, as many courts, judges, lawyers and states develop best practices and compliance requirements for digital forensics of all kinds. Using a litigation services firm can help mitigate these risks affordably, and in a timely fashion, thus substantially decreasing the risks of unprepared eDiscovery proceedings.