The recent subpoena of TXTmob programmer Tad Hirsch by the New York City Law Department illustrates the risks text-messaging services face from legal discovery.
The New York City Law Department subpoenaed Hirsch, who wrote the code for the TXTmob text messaging service, ordering him to cough up records of the content of the messages exchanged on TXTmob during the 2004 Republican National Convention assembly in New York.
City attorneys didn't stop there; they also want the identification of people who sent and received messages, the time the messages were sent for the duration of the event, and a list of people who used the service during the event.
As a result, text messaging services, and communications providers in general, may need to cede some rows versus litigators in order to fight another day, according to Twitter co-founder Biz Stone, who responded to a question about how such as case could affect Twitter, the tremendously popular text messaging social network.
"This sort of scenario is part of our job," Stone told eWEEK April 1. "We think of Twitter as an increasingly significant communication utility around the world. We expect that as our service grows, so too will the number of individual cases involving personal privacy and authorities. Each scenario will be different and call for the appropriate reaction."
"We also reserve the right to cooperate with government and law enforcement officials to comply with the law if we believe there is a compelling legal obligation to do so," Stone said.
Text Is E-Mail in the Eyes of the Law
That attitude of compromise is pretty much all a text messaging service can do, according to Phil Malone, director of the clinical program in cyberlaw at the Berkman Center for Internet & Society at Harvard Law School.
Malone said text messages are lumped with e-mail under Federal Civil Procedure Rules that let lawyers ask for digital communications if it will help them make their case.
Thanks to the Federal Rules of Civil Procedure, lawyers can request information, not only from those named in a lawsuit, but third parties who happened to be present at an event where crimes were committed, even if they were not implicated, he said.
Courts will grant most requests for information about people named in a lawsuit. However, courts also reserve the right to deny requests for information from third parties if they believe the information request will not aid in the case. Of course, those subpoenaed can always object, citing an invasion of privacy and a trampling of First Amendment rights.
Regardless, Forrester Research analyst Charles Golvin said communications providers like TXTmob, Twitter, and Webmail and instant messaging vendors like Google, Microsoft and Yahoo, have to be aware that someone may request their records for the purposes of litigation or prosecution.
Moreover, vendors must make sure they have well-advised positions on what they should be expected to provide and what is beyond the pale.
"As to the users, I think Scott McNealy [co-founder of Sun Microsystems] provided a good tableau when he said 'you have no privacy, get over it,'" Golvin told eWEEK. "By which I mean it's better to assume that's true and act accordingly than it is to assume it's not and be disappointed.
IDC analyst Robert Mahowald agreed.
"This is something that has been done before, and users are advised to be cautious of what they say anyway," he said, citing cases where Yahoo and AOL have had their servers hacked, revealing users' text messages.
This doesn't mean you should be afraid to use Twitter. Just know that what just as we're all accountable for our own actions, are tweets are admissible in court.