Text messages are a common exhibit for family law cases. At times, text messages can be a strong barometer of truth, as future litigants send text messages to one another not thinking that a third party may read them some day. For others, it’s evidence of other party’s volatile emotional state, or inability to communicate about coparenting issues. No matter how they are used, the fact remains that text message images are a steady source of exhibits in family law cases.
Accordingly, it’s really important that potential family law litigants be aware of Apple’s potential modifications to their iMessage app. First, it’s important to say that as of writing this blog, Apple has not officially said what their modified features are going to look like once iOS16 is ready for public use. However, Apple announced that users will be able to edit their sent messages. Obviously, if Apple does not provide any forensic record on iMessage of the previous versions of the original text message, the ability to edit texts could be a massive concern for parties in Court. Spiteful parties may be able to edit their message to gaslight another party into appearing unreasonable, agreeing to something they never agreed to, or may completely change the dynamic and topic of conversation.
More concerning, Apple also announced that users will be able to “unsend” messages sent within a certain time period. As of writing this blog, the time period is 15 minutes. This means that texts that could be meaningful to a case can be removed on both parties’ app without the recipient’s consent. It’s unclear at this point whether there will be a forensic log of this “unsending” process either. Obviously, this is even worse than editing texts because the recipient may never see the message in the first place before it is “unsent”.
It’s important to note nothing is set in stone yet. Indeed, lawyers and victims’ advocates are contacting Apple to try and note their concerns with the proposed modifications. Many other messaging services, such as Slack and Discord, have used an editable or delete message feature for years. However, those apps are not widely used by millions of iPhone users. It’s possible that the Apple will add a feature akin to turning off “read receipts” so as to prevent one party from unilaterally deleting or unsending texts without the other party’s consent. In addition, Apple will be adding a potential feature called “Safety Check” that you can read about here.
However, until the iOS16 comes out, no one will know what changes are in store for sure. So, what can you do right now if you are in litigation or anticipating litigation? The most important and efficient thing you can do is turn off iMessaging. Turning off iMessaging will force your phone to engage in only SMS text messaging. If you are unwilling to do that, then the only other thing you could do is be extremely proactive and screenshot every text message with the opposing party for any relevant conversation. However, it will likely be extremely difficult for you to know what’s relevant until you speak to a family law attorney. Even then, you may not be fast enough to capture the image, or may not be an emotional state where “taking a screenshot” is the first thing in your mind. It may be that Apple will allow you to isolate particular conversations to SMS text messaging only in the future. However, the best advice, if you are anticipating litigation, is to take pictures of old messages now, and move to SMS text messaging for the foreseeable future.
Keeping a clear line of communication with your spouse, ex-spouse, co-parent, etc. is crucial before any litigation, let alone during litigation. However, if you are considering filing for divorce, reopening an old matter, or filing parenting petition, it would be wise to consult with an attorney who can provide you with both the legal and practical advice when you are communicating with a potential opposing party in a court case. The family law attorneys at Parnell, Michels & McKay are experienced in providing guidance in these areas. If you are interested in learning more about how communication can impact parenting plans, divorce, child support, or any other legal worries, please contact us to learn more.