When Text Messages Bite Back – In Court

Divorce attorney Heather Hostetter says a single text message sent in a fit of rage can wreak havoc in a child custody case. “We’ve seen e-mails used in court, and now we’re beginning to see text messages,” she says. “If taken out of context, a text message can make someone look like a real jerk.”

Texting is a serious problem because of its flippant nature, says Hostetter, an attorney with the Maryland-based law firm Sachitano Strent and Hostetter. She’s been able to convince her clients to let her preview e-mails before they’re sent to ex-spouses but not text messages.

Too easily, rapid-fire thumbs type and send sensitive text messages much like ignorant words spout from mindless chatter. Unlike words, though, text messages are stored on servers and phones. These text messages can come back to bite you—hard. A salacious or hurtful text message can lead to a lifetime of embarrassment and even land you in legal hot water.

Enter TigerText, an iPhone app that promises to safeguard you from wayward text messages. The free app lets users send text messages to TigerText’s server, which forwards it to a recipient who can view the messages via an app reader. This bypasses a wireless carrier’s text messaging service.

Here’s the kicker: The text message would then be wiped from the face of the earth. After a pre-determined amount of time, the text message disappears from both the sender’s and recipient’s phones, as well as TigerText’s server.

The purpose of this app, of course, is to hide your tiger tracks. Although TigerText appeared on the App Store late last month, makers of the app swear they came up with the app’s name well before steamy Tiger Woods text and voicemail messages to mistresses made headline news.

Whoa, Let’s “TTT” (Take it to TigerText)

Hostetter sees a lot of value in TigerText. “I’m considering advising clients to use TigerText if they’re having an affair or if they can’t exercise impulse control in the heat of anger when corresponding with their soon-to-be ex-spouse,” she says.

TigerText has gotten a bad rap because of its apparent association with the Tiger Woods scandal, says TigerText founder Jeffrey Evans . Yet cheating spousesaren’t the target users, he says. On the contrary, Evans claims an investment bank uses TigerText so that members of its negotiating team can talk with each other during meetings without worrying about strategic messages getting dug up later.

“Even young professionals in New York will write in an email ‘TTT’—or take it to TigerText—if the information is getting sensitive,” Evans says.

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 at tkaneshige@cio.com. Or follow him on Twitter @kaneshige. Follow everything from CIO.com on Twitter @CIOonline.