Text Messages in Court Cases Bite Hands of Senders

Allen Edmond, CFO at Flav, a startup flavored water vendor, began using TigerText in order to communicate with Flav's corporate lawyer. Prior to TigerText, Edmond says, the lawyer refused to correspond via text messages, out of fear they might be subpoenaed from the wireless carrier.

(Interestingly, Hostetter doesn't use TigerText when she corresponds with clients because she wants a record of the advice she's given them. Also, she isn't worried about subpoenas because she and her client are protected by attorney-client privilege.)

Now Edmond uses TigerText several times a day. Professionally, he sends text messages to the lawyer and a business partner. He also uses TigerText to joke around with close friends. "We're much more free in talking," Edmond says.

Danger! Danger! Danger!

But that's exactly what Hostetter is afraid of happening. "The danger of TigerText is that it leads people to have the false impression that they don't have to use discretion," she says. "But there's always going to be ways people get around it."

One way is to take a screen shot of the TigerText message. By pressing the home button and the on/off button together on the iPhone, a screenshot is added to your camera roll. Of course, this means the recipient of the text message is intentionally saving it.

Evans says TigerText messages can't be copied or forwarded. As for the iPhone's screenshot feature, he says, "In a version that will come out later this year, we've solved the issue of people being able to screenshot your message." Evans declined to provide details.

Other TigerText features in the offing include the ability to send pictures and voice messages, as well as a possible move to a monthly or annual subscription model.

With pictures, Evans says TigerText can help protect teenagers from making a mistake that will haunt them the rest of their lives. He cites a recent case of middle school students "sexting" a nude photo of an adolescent girl in Belmont, Mass. Now police are looking into possible child pornography charges.

A Loaded Legal Gun?

But this sort of thing--text messages and the law--can put TigerText in a precarious position, says Hostetter.

If police are investigating someone, says Hostetter, then they can notify TigerText to save all texts associated with this individual, possibly without notifying the person. Never mind that the TigerText customer assumes TigerText is deleting all messages.

"I can definitely see myself sending something to TigerText, saying, 'I'm putting you on notice: Don't start deleting texts coming from this phone number,'" Hostetter says. Given the rise of electronic discovery in courts, she says, TigerText could also be subpoenaed to deliver past text messages, its servers scrubbed by a computer forensics expert.

"We would always co-operate with any law enforcement order that's given to the company," Evans says. "We're not going to fly in the face of a judge."

Tom Kaneshige is a senior writer for CIO.com in Silicon Valley. Send him an email attkaneshige@cio.com. Or follow him on Twitter@kaneshige. Follow everything from CIO.com on Twitter@CIOonline.

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