December 17, 2009
Text Messages, E-mails, and Cell Phone Records - The
New Evidence
By Laura M.
Holson
There is a question that has crossed the mind recently of anyone
who has sent a cellphone text message while cheating on a spouse:
What was I thinking?
Text messages are the new lipstick on the collar, the mislaid
credit card bill. Instantaneous and seemingly casual, they can be
confirmation of a clandestine affair, a record of the
not-so-discreet who sometimes forget that everything digital leaves
a footprint.
This became painfully obvious a week ago when a woman who claims
to have had an affair with Tiger Woods told a celebrity publication
that he had sent her flirty text messages, some of which were
published. It follows on the heels of politicians who ran afoul of
text I.Q., including a former Detroit mayor who went to prison after
his steamy text messages to an aide were revealed, and Senator John
Ensign of Nevada, whose affair with a former employee was confirmed
by an incriminating text message.
Unlike earlier eras when a dalliance might be suspected but not
confirmed, nowadays text messages provide proof. Divorce lawyers say
they have seen an increase in cases in the past year where a wronged
spouse has offered text messages to show that a partner has strayed.
The American Bar Association began offering seminars this fall for
marital attorneys on how to use electronic evidence text messages,
browsing history and social networks in proving a case.
How does someone make up an excuse when what is happening is
right there, written in black and white? asked Mitchell Karpf, a
Miami divorce lawyer who is also chairman of the bar association's
family law section. By the time someone shows up with a handful of
texts, there is no going back.
Although most e-mail users have come to understand that messages
remain on their computers even if deleted, text messages are often
regarded as more ephemeral type, hit "send" and off it goes into
the ether. But messages can remain on the sender's and receiver's
phones, and even if they are deleted, communications companies store
them for anywhere from days to a few weeks. AT&T said that, at
most, it saved text messages for 72 hours while Verizon said it
saved them for 5 to 10 days.
Lawyers expect the number of cases to grow as younger cellphone
users, who are more likely to text than talk, marry. Text messages
now outnumber mobile voice calls three to one, according to the
Nielsen Company. Monthly messages sent or received jumped to 584 a
person in the quarter ending in September, a 60 percent increase
from a year earlier.
At the root of the issue is privacy or rather the increasing
lack of it in our show-and-tell digital culture. Text messages are
considered private, much as telephone calls are, legal experts say.
But if a cheating spouse's cellphone is part of a family calling
plan or regularly left unlocked and unattended on the dinner table
or night stand, it is conceivable that a partner who suspects
infidelity could make a case for sifting through the in-box.
People who have something really private to say probably
shouldn't do it in a text on their cellphone, said Marc Rotenberg,
executive director of the Electronic Privacy Information Center, a
public interest research group based in Washington.
In Mr. Woods's case, Jaimee Grubbs, who has worked as a cocktail
waitress, came forward with text messages that she said were from
Mr. Woods once he was rumored to be having marital problems after he
slammed his car into a fire hydrant and a tree on Thanksgiving.
Since then, several other women have said they, too, slept with Mr.
Woods. He has said in a statement only that he was sorry for his
"transgressions" and asked that his family be left alone.
Personal sins should not require press releases, and problems
within a family shouldn't have to mean public confessions, Mr.
Woods said.
Others, like Kwame Kilpatrick, the former mayor of Detroit, were
found out because they used government-issued mobile phones and
pagers. Mr. Kilpatrick lied under oath about having an affair with
an aide, but his text messages revealed the truth. Nevada's
governor, Jim Gibbons, was accused last spring by his wife in
divorce documents of sending more than 800 text messages to a
mistress in 2007. He contended that the woman was a friend, but he
paid the state $130 for the messages from his phone.
What is more common, though, is suspicion followed up by a
confrontation. Doug Hampton, a longtime friend and employee of
Senator Ensign's, said recently on the ABC show "Nightline" that he
was alarmed after he had borrowed Mr. Ensign's cellphone in late
2007 to call his wife, Cynthia Hampton, and found her listed as
"Aunt Judy." Mr. Hampton said he found an incriminating text message
and confronted the pair about their affair at a Christmas dinner
soon after.
In a recent survey of 2,300 adults about social networking, the
Pew Internet and American Life Project found that 12 percent said
they had shared information online that they later regretted
posting. Posting on a social network is not the same as sending a
text message. But Lee Rainie, director of the Pew project, contends
it is evidence of an overall cultural shift in which people have
become increasingly careless about revealing personal information
they cannot take back.
It is one thing to write a personal note to someone who shares
it with her two best friends, said Mr. Rainie. It is another thing
to text your undying affection and become a laughingstock. What
feels intimate and anonymous at the time, perhaps, really isn't. It
can be shared widely.
Sherry Turkle, a professor and researcher at the Massachusetts
Institute of Technology, has studied interaction with technology for
more than two decades. Unlike with computers, Professor Turkle said,
consumers have a deeply personal connection to their cellphones,
where they keep contact lists and family photos. They carry them in
their pockets, she said, next to their skin.
One woman Professor Turkle spoke to for a study was so
grief-stricken after she had misplaced her cellphone that she
described the loss as a death. "People feel it is an extension of
their body and mind," the professor said, but, she added: "Like
Peter Pan, we do not see our electronic shadow until it is pointed
out to us. We assume it is not there."
Proving adultery is not the only value of a text message to a
divorce lawyer. Last year Mr. Karpf, the lawyer from Miami,
represented a husband whose wife was seeking sole custody of their
child. The wife claimed the husband had left her and the child. He
countered, saying he left because she was physically abusive. She
denied it until Mr. Karpf produced several text messages the wife
sent her husband apologizing for her inappropriate behavior. "She
set up the whole case for me," Mr. Karpf said.
Robert Stephan Cohen, the lawyer who represented Christie
Brinkley in her divorce from Peter Cook, said a spouse's finding out
about a cheating partner by reading their personal text messages
would have a profound effect on how such cases were played out, both
in court and among friends and family. Mr. Cohen predicted that the
battles in even the most routine divorces would become uglier with
more text messages as evidence.
"It's much different than rumor running around about a husband at
dinner with a babe in the back booth," he said. It's in the
spouse's face. They read it over and over again. It's harsh and
hurtful. |