Do-It-Yourself Text Message Preservation

More and more apps advertise the ability to download, export, or otherwise save text messages. Some, like evichat, even advertise this ability directly to lawyers. While these low-cost alternatives may save you some money in the short term, they come with their own set of problems. Know what you are getting yourself into before you resort to an app to take the place of a digital forensics expert.

The first question to consider before using one of these apps is, does it capture the data you need? While we often use the term “text message” to refer generally to a digital message on a cell phone, it does have a specific meaning. Text messaging are messages sent through the phone’s default text app, using SMS or MMS. Messages through services like WhatsApp, Signal, Facebook Messenger, etc. may not be captured by one of these DIY apps. That means you may not be collecting all of the relevant messages.

Additionally, these apps may not capture all of the metadata associated with text messages. Metadata can include the sender information, date and time received, whether the message was read or not, and in some cases, whether the other party read the messages.

Assuming the app captures all of the data you need, the next question is, how do you introduce it at trial? You need to lay the foundation for the introduction of the messages as well as establish authenticity. You may be able to do this through your client testifying, but if that is not enough or your client does not testify, the only witness left to lay the foundation would be the person who saved the messages – you. Obviously that presents an ethical problem.

Even if your client testifies about the messages, what do you do if the other side raises a challenge? What happens if the other side says the messages are incomplete, or altered, or not preserved in a forensically sound manner? In all of these situations, you risk becoming a witness in your case.

There is a desire among lawyers to treat text messages and other cell phone data differently than other digital data, such as evidence from computers. In reality, digital data is complicated and always changing. Cell phone examinations can be just as complex are forensic examinations of computers. Be careful if you want to use these kind of apps for preservation of data. They may save you money in the short term, but could result in trouble in the long run.