Texts and Instant Messaging - A New Frontier for South Dakota Businesses

Scott Swier
Founding Member, Attorney At Law

 

Texting and instant messaging should be "on the radar" for any South Dakota business. Email is no longer the only electronic communication that may be used in defending lawsuits. Because of "smart phones," texts and instant messaging have become an increasingly vital type of evidence in lawsuits. 

What is Text and Instant Messaging?

Text messaging originally referred to messages sent using the Short Messaging Service. SMS text messages are limited to 160 characters, are transmitted through cellular carriers’ systems, and are typically stored on those systems for a short period of time (for example, 48 hours to two weeks) in addition to being stored on the sender’s and recipient’s devices.

However, the emergence of mobile Internet access has led to the increasing adoption of IP-based messaging, carried via the Internet and without passing through a carrier’s infrastructure, and usually having no cost to the user. A recent Pew Research Center study found that 91 percent of American adults own a mobile phone and 81 percent use their phone to send or receive text or instant messages. Broken down by age group, 97 percent of those 18-29 and 94 percent of those 30-49 send and receive such messages on their phones. Those in the 50-64 and 65+ age groups bring down the overall average to 75 percent (still high) and 35 percent, respectively.

How Big is Text and Instant Messaging?

Nearly 10 trillion SMS and 10 trillion IP-based messages were sent in 2013. As of June 2012, Apple’s iMessage service had 140 million users who sent one billion messages a day. Granted, a large portion of these messages, even in the work context, are personal, such as “Where do you want to meet for dinner?” But it would be a mistake to presume that all employee texts and instant messages are unimportant. More people are using instant messaging in place of phone calls and email for work communications. Younger employeers are used to communicating by text and instant message and are more likely to use them in their work communication. It is likely that users may be more informal and less careful about the contents of their text and instant messages.

How is Text and Instant Messaging Important in a South Dakota Business Lawsuit?

Text and instant messages can be a factor in lawsuits and investigations. They have been used as evidence in sexual harassment and wrongful termination cases, and often in litigation arising out of industrial and other accidents. Prosecutors appear particularly interested in text and instant messages in building potential criminal cases. 

South Dakota businesses must recognize the importance of text and instant messaging and understand that email is no longer the only form of electronic communication that may used in lawsuits. 

Source:  Inside Counsel Magazine