Text messaging as evidence

[Paelos]

I saw this on CNN.com about Kobe Bryant's Defense Team Gets Access to Rape Victim's Text Messages. This isn't so much a comment about the specific case, as it is about the fact that this may be the first case in America where evidence hinges on text messaging. The judge apparently has allowed the defense access to these messages because he believes them relevant for discovery, which means most likely that they favor the defense in some form. The prosecution is not happy, calling it a "fishing expedition." Personally, the more I hear about the women in question and the evidence surrounding the case, the more I believe that Bryant is not a rapist. He's a HUGE moron, and by all rights he should be sterilized for blatant stupidity, but that only lumps him in with about 60% of the NBA.

Now we see that as we get more interconnected, every piece of information that we send is being recorded and could come back to haunt us in a court of law. My feelings toward this is that I'm a little disturbed that this much specific information is being recorded by telecommunications providers. It's one thing to know that you made calls on a certain day at a certain time, its another to have transcripts of every call that you make. I'm wondering what people think about the privacy/legal issues of the precedents being set here.

[Murgos]

Time to start encrypting your text messages.  Let's see how long it takes for a blackberry version of PGP to show up...

[daveNYC]

The company has said it cooperates with law enforcement but refused to discuss its policies on storing text messages.

That's not good.

[kaid]

Everything you say can and WILL be held against you in a court of law.

Kaid

[Signe]

I have to find a way to block my thoughts as Murgos seems to be posting what I was thinking.

Privacy?  Didn't the Patriot act make that illegal?

[Dark Vengeance]

Everything you say can and WILL be held against you in a court of law.

Kaid

That's only supposed to apply after you are read your rights and taken into custody. Sadly, we may be moving toward the day and age where that will apply at all times.

And to me that sucks....what is supposed to be a private conversation should not be compromised due to the medium used, as long as that medium is not public (i.e. television, radio, public message board, etc). I'd be outraged to have text transcripts of my phone calls, IMs, or a diary scrutinized by a court of law.

Bring the noise.
Cheers............

[kaid]

They have been doing that for years. If you get arrested (or involved in a criminal or civil legal action)  for something you can bet if you have a computer they are going to if the subpoena is sent look through your email,  your phone records, your answering machine or anything else that may give them the info they need.

If you are not talking to your priest or your lawyer anything you say, message, email, write down is fair game if they get a supenea for that information.


Kaid

[Sky]

I've been meaning to get ordained...

[Dark Vengeance]

They have been doing that for years. If you get arrested (or involved in a criminal or civil legal action)  for something you can bet if you have a computer they are going to if the supenea is sent look through your email,  your phone records, your answering machine or anything else that may give them the info they need.

If you are not talking to your priest or your lawyer anything you say, message, email, write down is fair game if they get a supenea for that information.


Kaid

That's all well and good for the accused....but for the victim in a criminal case??

Bring the noise.
Cheers.............

[daveNYC]

Thing that gets me is that AT&T isn't talking about its storage policy.  Who can get access, how long the messages are stored for, that stuff.  If I kill someone and then text someone about it, sure, fine; but AT&T's refusial to talk about their storage policy makes me worry if any old idiot could be reading messages, even messages from months ago.

[kaid]

Yes the defendant has a right to procure evidence just as the DA does. The defendents can subpoena records they believe will help prove their clients innocent.

Kaid

[Dark Vengeance]

Yes the defendant has a right to procure evidence just as the DA does. The defendents can supenea records they believe will help prove their clients innocent.

Kaid

So let me get this straight....if the defendant said that she thought Kobe Bryant was sexy on a text message to her friend in 2001, that's somehow supposed to prove that she wasn't raped in 2003?? I'm calling bullshit on that one.

If she had said something along the lines of "I should just cry rape and then sue him for a bunch of money" or about it as a consentual encounter after the fact, I could understand it being used as evidence. There should be a tight control by the judge regarding what is allowed into evidence....ensuring that it is placed in context, and that the date and time relevant to the alleged rape be made crystal clear.

IMO, we need to be very careful about that sort of stuff being admitted into evidence, and how it is allowed to be used in the case. I'm not a big fan of having to continually tread on eggshells with what I say....but that seems to be the trend anymore. The need to actually censor people has taken a backseat to making them fear the myriad ways that what they say can be turned against them in the future. The end result is the same...people don't feel free to say what they want to say, and state their real beliefs and their real opinions.

And that pisses me off.

Bring the noise.
Cheers..............

[HaemishM]

Welcome to America. We'll decide what you did wrong after we pore through every single bit of data you might ever have considered using.

If you have a computer, and you are arrested for jaywalking, don't be surprised if they confiscate your computer and return it to you in discrete little baggies. If you produce data, it's going to be fair game.

On the bright side, you're life will probably never rise above the level of the mundane.

[Daeven]

Know what I think about this?

Begin PGP encryption block
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FLdjfl;aksj dsadflk j290ufj9p8A FDI j3289R U WKFOH2P398F WIFH FH849Q QH4IFU H894F H98F 984F SKV NUYGHHjuin kalf ergaek fj fdsjiaod f34 hKJWHF*9w4pfHkjsaefh  fh 938q93fh skdfh 3q9ph t
----------------------------------------------
End PGP encryption block

And you can quote me on that.

[schild]

FLdjfl;aksj dsadflk j290ufj9p8A FDI j3289R U WKFOH2P398F WIFH FH849Q QH4IFU H894F H98F 984F SKV NUYGHHjuin kalf ergaek fj fdsjiaod f34 hKJWHF*9w4pfHkjsaefh  fh 938q93fh skdfh 3q9ph t

I was thinking the exact same thing. With less furries.

[Abagadro]

If there is eculpatory evidence in those statements that may make the difference  between a man going to jail for life or not, I don't know how anyone could have a problem with them being accessed.

[Xilren's Twin]

If there is eculpatory evidence in those statements that may make the difference  between a man going to jail for life or not, I don't know how anyone could have a problem with them being accessed.

BUt what's the practical difference between recording someone's text messages without out their consent and wiretapping their phone to record their calls?  Does the ISP's terms of use agreement give them the legal authority to not only record said communication but store it for however long they want to share it when they feel the need?  Can you even get internet service without agreeing to such recording? What if you used a public station like a library terminal?

Just curious.

Xilren

[kaid]

Sure if you want an ISP that dosn't record anything get any of them and just don't use email. Any mail you send passes through mail servers depending on your mail client settings it could be storing all your mail on that server or it could remove it from time to time.

Mail servers to prevent big icky nasty downtimes in cases of things blowing up are backed up often many times per day. How long they keep those backups depends on the volumn of mail and the ISP's storage abilities but often these are kept for up to a month.

If you have sent mail within the last month it is very possible for cops to suppena the ISP to retrieve whatever copies they have. How much information they get can vary widly.

Kaid

[Xilren's Twin]

Sure if you want an ISP that dosn't record anything get any of them and just don't use email. Any mail you send passes through mail servers depending on your mail client settings it could be storing all your mail on that server or it could remove it from time to time.

I suppose I should click links ever now and again.  This isn't about email (that part I knew) and internet instant messaging (which is what I was mainly asking about).  Turns out this was a text message over a wireless phone.  ;)

Xilren

[TripleDES]

Sure if you want an ISP that dosn't record anything get any of them and just don't use email. Any mail you send passes through mail servers depending on your mail client settings it could be storing all your mail on that server or it could remove it from time to time.

That's why there are tools like PGP. And no, there's no backdoor in there, nor can the NSA crack the keys in no time.

[Joe]

Once something is written down and sent to another person, even if she made the subject "OMG PRIVATE," it's pretty much in the public domain. It's one thing if it's a diary, but a text message is basically the same thing as mail. As far as I know, your mail records can be subpoenaed, so I'm not quite sure what the problem is. The moral of the story is never write down your maniacal plans to take over the world, and don't send them over an insecure, shitty SMS service.

So let me get this straight....if the defendant said that she thought Kobe Bryant was sexy on a text message to her friend in 2001, that's somehow supposed to prove that she wasn't raped in 2003?? I'm calling bullshit on that one.

I'm not exactly sure what that has to do with anything. That's really something up to the jury to discern. If all the defense can produce is that, I don't see it actually having any tangible effect on the outcome of the case.

[Krakrok]

Turn "history" off on your Instant Messenger.


In some case on the east coast it was ruled that cutting and pasting from an IM message someone sent was illegal wiretapping. It is also possible to claim that IM's are akin to "voice mail" or answering machine messages which in civil cases (IANAL) might not be discoverable.


And cell phone companies keep SMS messages a long time.

[Alkiera]

When I read about this awhile ago, the article stated that they were cellphone  text messages, and the ones asked for were within a day or two each side of the night she was supposedly raped.  The article also stated that the defense believed there were messages sent to her boyfriend and others that would help the defense.

PGP for cellphones (or GPG, or whatever the standard is now, there were some legal issues regarding PGP semi-recently) will probably be out shortly if this evidence makes a difference in the case, I'm sure.

--
Alkiera

[Nazrat]

Turn "history" off on your Instant Messenger.


In some case on the east coast it was ruled that cutting and pasting from an IM message someone sent was illegal wiretapping. It is also possible to claim that IM's are akin to "voice mail" or answering machine messages which in civil cases (IANAL) might not be discoverable.


And cell phone companies keep SMS messages a long time.

In Texas, where I am an attorney, voice mail and answering machine messages are discoverable.  Here is the actual statute on what is discoverable:  

In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Under documents, the following are included:  

A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the subject matter of the action.

Texas Rule of Civil Procedure 192.3

In short, anything is discoverable.  The burden is on the person objecting to the discovery to prove why the information requested is not relevant.  That is a huge burden that is virtually impossible to prove without a clear demonstration of excess cost involved in the request.  

As a general rule, I ask for everything that could possibly be relevant.  In most cases, voice mail, email or text messages aren't necessary.  However, you don't know unless you get it and see.

[Alluvian]

Forgive my ignorance in the basics of this post, but yesterday on some morning talk radio program they were discussing allegations against someone they referred to as "The Goose".  It seemed like a sports figure to me, but I am not sure.  Sounded like an ex-player who was supposedly helping a girl out with her game.  I came in somewhere in the middle.

Anyway, they were reading the allegations that he had sexually assaulted a 14 year old girl in a pool by sticking his finger inside her vagina repeatedly and then later forcing her lips onto his penis.  As evidence they started reading out loud his AOL instant messages that he had sent to the girl after the fact that while never spelling anything out, seemed pretty damning.  The radio station stated that they got this information from the courthouse because the freedom of information act had made it public record to anyone who requested it.  I don't understand why this was public record at all.  Especially since having this out there before the defense team can formulate a defence would sway potential jurors.

I am also not sure, but I think the information was retrieved from the 14 year old's accusers computer, not his.  Plus there was an officer in her house monitoring some of the later conversations that were read on the air.

This seemed to be far more of a breach of privacy than privately retrieving text messaging data.  This is reading these messages outload to the general public long before being convicted.

[HaemishM]

The Goose? As in Goose Gossage, former New York Yankee relief pitcher?

Grand jury testimony is not supposed to be public record, whereas unless a judge orders court documents sealed, trials are public record. If it's grand jury testimony and evidence, it shouldn't have been out there. Public trial, though, and no one can stop them from airing it.

[Paelos]

Could be Tony Saragousa, the old lineman for the NFL who does commentary for FOX now I believe. They also call him Goose.

[Nazrat]

Well, information obtained in discovery isn't public record.

However, the information contained in a subpoena, indictment, or other publicly filed document is easily obtainable by just walking into the courthouse and asking for it.  

It would surprise me that Goose's attorney didn't file a motion to seal those documents as they are clearly a problem on a lot of levels.

[Alluvian]

The Goose? As in Goose Gossage, former New York Yankee relief pitcher?

Grand jury testimony is not supposed to be public record, whereas unless a judge orders court documents sealed, trials are public record. If it's grand jury testimony and evidence, it shouldn't have been out there. Public trial, though, and no one can stop them from airing it.

No, he was teaching her basketball.  I still don't know if he was an ex-player or coach or what.  They did try and guess his age and were guessing 40's or 50's if that is any clue.

It was probably the subpoena records/ indictment then, as the arrest happened past midnight on a Monday and they were reading this stuff on the air Tuesday afternoon.  It is nowhere near trial yet.  I can't find shit about it on CNN.  Maybe it happened in Florida making it more of a local story to these guys.  Hell, maybe he was an ex-college star locally or something.

[WayAbvPar]

Jack "Goose" Givens is his name. He used to play in the NBA, and is the color commentator for the Magic.

[Murgos]

Well, if they are the girls records and she wishes them aired then thats her decision.  Unless she signed a contract with'Goose' vowing not to disclose any private and confidential coversations, besides the fact that she is underage.

Now, if the conversations are being aired against her and Gooses wishes and are part of the public record EVEN before trial then I think there is probably a serious oversite in the legal standing of those records and new law probably needs to be developed or existing law expanded upon.