Securing Sexuality is the podcast and conference promoting sex positive, science based, and secure interpersonal relationships. We give people tips for safer sex in a digital age. We help sextech innovators and toy designers produce safer products. And we educate mental health and medical professionals on these topics so they can better advise their clients. Securing Sexuality provides sex therapists with continuing education (CEs) for AASECT, SSTAR, and SASH around cyber sexuality and social media, and more.
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Understanding the Legal Implications of Text Messages in Civil Cases
Text messaging has become an integral part of modern communication, with billions of messages exchanged every day all over the world. While texting has made communication more convenient and efficient, it has also created a new avenue for legal disputes in civil cases. Text messages are now being used as evidence in various court proceedings, and their admissibility has raised questions about privacy and reproductive rights. In this blog post, we will explore the legal implications of text messages in civil cases and their impact on privacy and reproductive rights. We will also discuss the admissibility of text messages as evidence in court and the challenges of preserving their authenticity.
Text Messages as Evidence in Civil Cases
Text messages are now being used as evidence in civil cases, including divorce proceedings, employment disputes, and personal injury cases. Text messages can provide valuable evidence in court, as they can provide insight into the intentions and actions of the parties involved. They can also help establish timelines and provide context for other evidence. However, the use of text messages as evidence in court has raised concerns about privacy and the admissibility of electronic communications. Text messages are often informal and can be taken out of context, leading to misinterpretation and misrepresentation of the facts.
Additionally, text messages can be easily manipulated, deleted, or altered, making it difficult to establish their authenticity.
Privacy Implications of Text Messages in Civil Cases
The use of text messages as evidence in civil cases has raised concerns about privacy. Text messages often contain personal and intimate information that the parties involved may not want to be made public. The use of texts as evidence in court can violate the privacy of the parties involved, especially if the messages are taken out of context or used to embarrass or humiliate them.
Reproductive Rights Implications of Text Messages in Civil Cases
The use of text messages as evidence in civil cases has also raised concerns about reproductive rights. Text messages can provide evidence of infidelity, sexual activity, and other intimate details that can be used against a person in court. This can have a chilling effect on a person's reproductive rights, as they may be hesitant to engage in sexual activity or seek reproductive health services for fear of their privacy being violated.
Admissibility of Text Messages as Evidence in Court
The admissibility of text messages as evidence in court is determined by the rules of evidence. In general, text messages are admissible as evidence if they are relevant to the case and can be authenticated. Authentication requires that the text message be shown to be genuine and not altered or manipulated. Authenticating text messages can be challenging, as they can be easily manipulated or deleted. In order to authenticate text messages, parties must provide evidence that the messages are genuine, such as testimony from the sender or recipient, metadata, or other circumstantial evidence.
Preserving the Authenticity of Text Messages
Preserving the authenticity of text messages is crucial in order to ensure their admissibility as evidence in court. Parties must take steps to preserve the original text messages, such as by taking screenshots or printing them out.
They must also be able to provide evidence that the messages are genuine and have not been altered or manipulated.
Text messaging has become an important form of communication in modern society, but it has also created new legal challenges in civil cases. The use of text messages as evidence in court has raised concerns about privacy and reproductive rights, as well as the admissibility of electronic communications.
Parties must take steps to preserve the authenticity of text messages in order to ensure their admissibility in court. As technology continues to evolve, it is likely that new legal challenges will arise, and it is important for the legal system to adapt in order to protect the rights of all parties involved.
Stefani Goerlich: Hello and welcome to Securing Sexuality, the podcast where we discuss the intersection of intimacy
Wolf Goerlich: and information security. I'm Wolf Goerlich.
Stefani Goerlich: He's a hacker. And I'm Stefani Goerlich.
Wolf Goerlich: She's a sex therapist and together we're going to discuss what safe sex looks like in the digital age. Today we're doing the update we never wanted to do. Unfortunately, probably the first in many updates we don't want to do, which is Privacy in a Post-Roe America, Part 3. There's a case in Texas that caught our attention and started this. It's the first lawsuit of its kind since Roe v. Wade was overturned. And what's happening is an ex-husband is suing his ex-wife. No, what's happening is an ex-husband is suing the friends of his ex-wife. Effectively, he learned that his ex-wife was pregnant. She went ahead and obtained abortion-inducing medication. He read those texts. He had copies of all the information, got counsel, and is now suing the friends in relation to wrongful death.
Stefani Goerlich: Yeah. It's a civil claim, so I don't know that he went to law enforcement or not. But he has filed a civil wrongful death action against the three women who helped his ex-wife attain the medication that she needed to do a self-managed abortion in her own home.
Wolf Goerlich: First off, we shouldn't have been having this conversation. Secondly, now that we are having this conversation, in the privacy of our own home, his ex-wife has done something, why is he suing the friends, not taking it up with her?
Stefani Goerlich: Because this law was written in a particularly insidious and awful way. What it does is it exempts the pregnant woman from prosecution for trying to have or from having an abortion to end a pregnancy. What it doesn't do is protect anyone who tries to help her with this. So he can't legally actually sue his ex-wife for terminating her pregnancy, but he absolutely in the state of Texas can sue her friends who helped her. Just in case anyone out there thinks that this is a bug in the law and not a feature, his attorneys here, he's actually represented by the former Texas Solicitor General, who's considered the architect of this law, and a state representative. These are the people who wrote this law, who created it, who designed it, who weaponized it against women and the people who support women. And now for one woman, her friendships are being weaponized by her ex, and her friends are facing a civil lawsuit for helping her obtain medication.
Wolf Goerlich: So you said this law, so it's a state law. It's a state law in Texas, right? Doesn't apply to other states.
Stefani Goerlich: It is a state law. However, it was actually fought all the way up to the Supreme Court. People tried to get it blocked. People tried to get it overturned. And the way that the law is written, there is really effectively no single enforcement point. So you can't sue the governor to say this law is unconstitutional because the governor's not in charge of enforcing it. You can't sue your local prosecutor because the prosecutor is not in charge of enforcing it. It was written in a really super villain, diabolically kind of way to make it almost impossible to untangle. And while when it was passed, this was SB 6, when it was passed, people fought it literally to the Supreme Court. The Supreme Court had to let it stand because they said that there was no one to tell it to stop. There was no person or entity to point at to say you can no longer enforce this because it is effectively a vigilante law where anybody can bring a civil case against anybody who assists anybody with an abortion after six weeks. And because it is so diffuse and because it is civil court and not criminal court, it has made it a legal nightmare to try and undo. And unfortunately, the Texas government right now has no interest in undoing it. And this is the first case that we're seeing of it being implemented against three women who just wanted to help their friend exercise her right to bodily autonomy.
Wolf Goerlich: So I suppose one could argue it's a good thing that the ex-wife is protected. Although obviously I would rather there be a much broader level of protection. It's interesting that he's going after the friends and not, I don't know, the company that provides the pill, not that I would want to see that happen.
Stefani Goerlich: So from the early news reports that I have seen, they have said that they are committed to pursuing any and all action that is available to them. From what I understand, the ex-husband's attorneys are actively trying to figure out which company manufactured the pill that she took to terminate the pregnancy. They were going to use a nonprofit and they were able to find another source for it. So while there had been communication with a really wonderful organization called Aid Access that has for years, long before Roe was overturned, helped women around the world access reproductive health care when they've needed it, they actually can't be parties to the suit because they were not the ultimate ones that provided the medication. So I believe, and I would have to check my sources, but I believe that the friends ended up getting the medication from Mexico where it is an over-the-counter ulcer medication. And because they procured it for her, they are being sued civilly. And the ex-husband's counsel is trying to figure out who manufactured the medication to see if they can somehow be held culpable as well, which frankly would just be a cash grab. The only reason you would do that is to get as much money as you can from the biggest sources possible because you know any pharmaceutical company is going to have more money than these three women do.
Wolf Goerlich: You mentioned Aid Access, which of course is a nonprofit that these friends were originally talking about, but not in contact. Of course, there's also Planned Parenthood in Texas. And many of these groups are very, very clear that they're going to connect people in Texas with out-of-state abortion providers, that they're going to provide resources. And rightfully so. I'm glad that those resources are available. I'm glad that these nonprofits and agencies exist. What is their liability?
Stefani Goerlich: I'm not an attorney. I'm certainly not a Texas attorney. And from what I understand, when the Texas SB6 law was passed, there is a bounty, I want to say a minimum of $15,000, maximum of $15,000. There's a cash bounty that anybody can sue somebody that supports a woman seeking abortion care for. And then on top of that, in a case like this where you have the ex-husband involved, I'm not sure what a court would do with that because this is all brand new ground. These are the kinds of situations that I was hoping against hope and that we would not see and terrifying knew that we would when you and I launched this podcast last year. Our very first episode was Privacy in a Post-Row America. And so from the very beginning, we've been watching this and waiting to see how it'll unfold. And the scary thing is for a lot of the questions that you're asking, we genuinely don't know because this is uncharted territory. And we're not sure how it's going to play out or what that playing field looks like exactly.
Wolf Goerlich: Now, the ex-husband is bringing this lawsuit based on text messages. And I'll get to in a minute how we've got a hold of these text messages. But oftentimes when we think about what we send over text, it is our predominant communication path these days. We don't usually think about it too much. Even you and I have sent things over text messages that I was like, oh, why did we send that? It's usually like a password or something. But it is very easy once you're in the habit of committing back and forth over text messages to put things that you shouldn't put in there. One of the things that you and I were having a conversation on before was what is legally discoverable? Because we've all seen cop shows where they're like, oh, get a warrant before I show you my phone and those types of scenarios. But I know from your experience in expert witness work and your experience with the court systems that what is discoverable by text messages may be much broader than what was on my phone when you got a warrant.
Stefani Goerlich: And this is one of those episodes where I kind of wish we were streaming on YouTube so we'd have a giant flashing chiron that's like, not a lawyer, not a lawyer. But one of the things that people don't think about is that discovery exists in civil lawsuits. And we have this idea that if I've broken the law or if I've done something that could involve me with the legal system in some way, that I have rights and that my rights will be protected and that the police have to get a warrant before they look at my text messages. But this is a civil case. He is suing these women civilly. And as a part of the discovery process in a civil case, attorneys can absolutely ask that the court compel the other side to turn over their cell phone records, their text messages, their emails. A lot of times people will say, I don't have any more, I deleted it. And the counsel will actually be allowed to go to the cell phone provider and request those records. So there are some things that we think of as being law enforcement activities. The police would go to T-Mobile and get my records if I committed a felony, maybe. But if I'm sued in small claims court, that's not going to happen. And it's probably not. But in a general civil case and in a wrongful death case, it absolutely can. We see it a lot with medical malpractice. We see it a lot with all kinds of civil claims in tort cases because text messages and emails are probably our primary form of communication these days. And what I suspect none of these women anticipated was that he would be able to get their text messages.
Wolf Goerlich: Yeah, they can be discovered. They can be legally compelled. So the first thing that we talked about this in our first couple episodes is don't use text messages. I mean, Signal, other secure chat. What do you tell your clients when you're talking about secure information?
Stefani Goerlich: Pick up the phone and have a phone call.
Wolf Goerlich: Oh, pick up the phone and have a phone call.
Stefani Goerlich: Meet up in person, go for coffee. There are certain conversations, and I mean this across the board, from sexting to period tracking to sensitive medical information and passwords. There are certain conversations that just don't need a paper trail, guys. And I am not saying that to blame these women for anything. They thought they were making good choices. You really, really have to think, would I want anybody else to see this ever under any circumstances? And if there's any possible reason why you would not want something to be seen by somebody else, please for the love of God, do not write it down.
Wolf Goerlich: I think it's much better advice, go out for coffee, than download Signal and configure it. Although I still think you should download Signal and configure it. But I think that is a much better way. Because the other thing is, if it's on your device, so even if you're using signal, right? We can say use a password to make sure your spouse doesn't have the password, use biometrics. You and I were having a conversation about biometrics. And my understanding is there's been times where, especially if it's an abusive partner or a soon to be ex, where they've actually used biometrics while the person was sleeping to unlock their phone with a fingerprint or face.
Stefani Goerlich: Which is terrifying. I do think that maybe biometrics could have helped in this case, because from what I understand of it, you know, they had separate households. They were divorced, they were not living together. And he was able to access the friend group's messages on a device that he still had post divorce. So, you know, if it had been a thumb scan or a face scan, if he hadn't have known the password or in this case, if it hadn't have auto logged in, you know, she might have had an extra layer of protection. Will it work if you are living with an abusive partner? No. But in this particular situation, it might have maybe protected her a little bit.
Wolf Goerlich: You're right. I really want to be clear that we're not saying these women should have done anything differently. Obviously, ideally, this would not be a crime. Ideally, this would not be a lawsuit. Ideally, this would not be a conversation we need to have. I'm simply bringing it up so we can figure out some ways where hopefully other people can protect themselves. And if you're meeting in person, not writing it down, that's good. If you're only keeping it on your device and you've locked your device so no one else can get to it, that's better. If the messages are on your device because you haven't met for coffee, if they're configured to disappear, delete after a period of time, that's better. Another thing in this case that you just highlighted, Stefani, I think is super important, which is what other devices are you logged in at? So in my iPhone, I can open up my Apple ID and I can go look at the devices that are connected. And one of the things I think everyone who's listening to this should do is check their connected devices and make sure that device is still theirs. Make sure that you haven't connected to a MacBook that is your ex-husband's or you don't have an iPhone on your list that is part of a family plan and used to be yours is now being used by someone else's. Because you're right, it seems that in this case, the ex-husband had a device that the ex-wife was still connected to and these text messages were being replicated and duplicated to that device. So he didn't even need to crack a password. He didn't even need to do anything other than pick it up and take a look at it. And one of the women in this text chat had even mentioned that. She said, you know, delete all conversations today. You don't want him looking through it. But unfortunately, by that point in time, it had already been made accessible and he had already screenshotted it. And we're going to be seeing more of this.
Stefani Goerlich: We launched this podcast talking about Dobbs and what people could do after the Dobbs ruling to protect themselves. And I kind of hoped at the time that we could put out some easy action steps, some good tips, some nice personal practices and rules, and that we could maybe not have to have such, like really awful episodes. But this is something that is going to continue. There are bills right now in Texas, in Kentucky, in South Carolina, in Oklahoma, in Arkansas that are targeting self-managed abortion, a medication abortion, which was the procedure that this woman had in this case, that are targeting, they're trying to remove the provisions that protect pregnant women from being criminalized. So one of the big things that the anti-choice movement has always said is that they didn't want pregnant women in jail, that they considered pregnant women to also be victims of the abortion industrial complex and that they never ever wanted to see a scared or sick woman go to jail. That is not the case anymore. They are actively trying to roll back the exemptions that are protecting the abortion recipient in this case. And there are so many of these laws coming down the pipe to make things more complicated, to restrict, if you look at each individual variable in this specific case, there are laws proposed in five, six, seven other states right now that would remove that variable, criminalize that variable, or somehow replicate this case in a worse way all around the country. And that's why, as much as I would love to be talking about Bluetooth-enabled dildos and cyber sex right now, sometimes we have to do these update episodes because we need to make sure that people have the critical information that they need to keep themselves and their friends and families and support people safe.
Wolf Goerlich: And if you go back a few episodes, it wasn't that long ago we were talking about Oklahoma's statewide health information exchange or HIE and the requirement of all mental health notes being put into a database. With that Oklahoma law that's being passed, how likely is it that a disgruntled employee, that an adversary, that a criminal, that a healthcare provider acting in malice could pull all the records of people who are going to their therapist and talking about unexpected pregnancies?
Stefani Goerlich: I mean, it's a very real possibility because, especially with the Oklahoma situation, these are shared across disciplines by every health provider in the state. If a doctor, a primary care provider, or an obstetrician-gynecologist is asked about abortion information, the way that they bill, the way that they track things for insurance, they have to write that down. If it comes up in the conversation, it's going to go in the notes as counseled on or provided medical information about or what have you. And so even if a woman decides not to, or even if a woman doesn't work with that particular medical provider, the record of that conversation is going to be in the medical record in the Oklahoma database. And I know that Oklahoma is not the only state, or region even, that has health information exchanges. And as we see these laws come in, we're already seeing deeply conservative states like Governor Abbott in Texas, Governor DeSantis in Florida, looking at how they can leverage state records and how they can leverage the legislative and civil court processes to target groups that they find to be unacceptable, in this case, women seeking abortion care. And so the idea that these private conversations could be available, whether it's in an HIE record or whether it's in a text message that was accessed through iCloud, is not hyperbolically, but very actually terrifying for women right now. And it is something that we all need to be aware of. So that if you hear what we're saying and go, oh my God, I don't ever want that to happen to me, you can know what the risks are and you can make the choices you need to make to protect yourselves right now.
Wolf Goerlich: And that reminds me, turn off iMessages replicating to iCloud. I hadn't thought about that one. That's a really good point.
Stefani Goerlich: In the same way that people drop their shopping lists in the parking lot because it falls out of their purse when they're getting their keys, digital notes get lost all the time. Things get misplaced, things get duplicated, things get into the wrong hands. If you live in Texas, in Florida, in any of the states that I mentioned earlier that are working on passing restrictions, Indiana, Ohio, you guys know where you're at. The states have been very clear on where they stand these days. You need to treat your medical plans and your medical records and your medical history as if you were a Cold War era spy trying to get across the border back home because it's being weaponized right now. And we're seeing that in this Texas case, but this is the case that is going to kind of lay the foundation for what these suits will look like in Texas. This is the start of a way of not an isolated incident.
Wolf Goerlich: It's not. And look, I'd love to be here talking about hardening bits and bytes. And Stefani, you said you'd love to be here talking about Bluetooth enabled dildos. But here we are talking about much more personal security. So let's try and end it up on an optimistic beat. I mean, the short of it is here was a group of friends who helped one another in a time of need. The short of it is come together, come together in person. Don't write things down. The short of it is trust in humanity. Don't don't trust in technology. I mean, the short of it is here are some tips that we hope you, the listener, can use if you find yourself in a similar time of need. At the end of the day, I love tech and tech is great. It's empowering. It's enabling. But nothing, nothing beats one-on-one coffee conversations and nothing beats having your friends have your back. Be safe out there. With that, thanks for tuning in to Securing Sexuality, your source with information you need to protect yourself and your relationships.
Stefani Goerlich: Securing Sexuality is brought to you by the Bound Together Foundation, a 501c3 nonprofit. From the bedroom to the cloud, we're here to help you navigate safe sex in a digital age.
Wolf Goerlich: Be sure to check out our website, securingsexuality.com for links to more information about the topics we've discussed here today, as well as our live conference in Detroit. And join us again for more conversations about the intersection of sexuality and technology.
Wolf Goerlich: But don't go yet.
Stefani Goerlich: Yeah. Hey, guys. This is our first ever podcast PS, our first ever update. And not only is this an update, you know, episode, a part three of the series that launched Securing Sexuality, but this is an update that we are posting before we even air this episode because as we were recording, somebody posted online in Reddit on a woman's subreddit, a very large woman's subreddit with the subject line “Pregnant in Texas”. And she gave her age and her estimated time since conception, she said she's about five weeks pregnant. She said that she was about to graduate college and she had a dream job lined up. She gave a lot of not personal information, but a degree of identifying information. And she was looking for advice and for guidance because she wasn't sure what she wanted to do with this unexpected pregnancy at this time in her life when she was supposed to start off on a new path. And I showed this thread to Wolf because I said, you know, look, as we are having the conversation, women online are having these conversations.
Wolf Goerlich: Yeah. And I looked at the comments and some of it was really good advice, like paying cash, get a burner phone, don't put stuff online, talk to friends in person. Some of the things that we've covered on this and some things I didn't think about like wear a hat, be aware of facial recognition. So at least the advice was good.
Stefani Goerlich: And Wolf and I went to bed last night saying, wow, we're really glad that we recorded this episode because clearly people are having these conversations and they need this information. And then this morning I woke up and there was another subreddit with another screencap where somebody had taken this young woman's plea for help, screencapped it and posted it on 4chan. And they were calling her a whore and asking for advice on how to report her to the Texas authorities. And they said, I couldn't find much info online. She's about to kill off her baby and all the miserable - I'm not going to repeat the words - are telling her how to. So less than 24 hours, really less than 12 hours from Wolf and I recording this episode to a real life example of women in need of these conversations to an immediate example of how having these conversations online, they're being captured, they're being weaponized and they're being targeted by strangers for the Texas bounty and frankly to make people's lives more difficult and more painful. So please guys be careful out there. Have these conversations in person, have these conversations verbally. I know that we live our lives online and I know that the internet is the easiest place to go for resources. And like Wolf said, the guidance that the girl was given was great. It was really solid information. But the fact that it was posted on Reddit exposes her to a degree of risk that is really scary. And we could not post this episode without acknowledging just how immediate and how common these situations have become.
Wolf Goerlich: Yeah, less than 12 hours as we're recording this near real time over to 4chan, people trying to de-anonymize her, people trying to find her. Please, please, please be safe out there folks.
Stefani Goerlich: And we'll see you next week.