Indybar: You Already Didn’t Like Text Messages as Evidence

By Mag. Andrew Bloch, Hamilton Superior Court

Earlier this month, Apple announced the latest update to the operations system that’s installed on your iPhone. Apple calls it iOS 16 (iPhone Operating System 16). After you read this post, Apple and iOS 16 may be off your holiday card list. If iOS 16 was a friend, some might consider canceling dinner plans with them. You might even unfriend them on Facebook.

iOS 16 comes out in the early fall, though some users are already running a beta version. First, some good news for family law attorneys. iOS 16 will allow you to recover deleted messages for up to 30 days and mark messages as unread (so you can read them later). Mother can now recall that offensive text message Father sent her when she was in your office. So far, iOS 16 doesn’t seem so bad.

But did you know you can also delete a sent text message or edit it for up to 15 minutes after it is sent? It’s a new feature that can’t (as of this post) be turned off. Sure, that might save you an embarrassing typo or allow you to recall that message you accidentally sent to your father. But let this new reality sink in.

At 11:33 p.m., Mother (who has a protective order against her for harassment) sends the following: “You’re a drunk, and you’re not seeing my child tomorrow.” Mom has until 11:48 p.m. to edit that message. Maybe in that time, she cleans up her grammar or spelling. However, for 15 minutes, she can also send the first message and then change it to something like this: “You can’t see Johnny tomorrow.” The possibilities are endless! In the first text, Mother has likely violated the protective order against her. However, her “timely” edit likely removes the violation (assuming she’s allowed to contact Father about the minor child). Now, Father no longer has proof of the violation unless he manages to take a screenshot in that short period of time. As a side note, there are at least three websites that allow someone to create screenshots online from scratch; that’s another blog post.

iOS 16 wants you to know that any message that is edited will note that it has been edited. But you have no way of seeing what the prior message was. There is no version history to be found. This will allow people to claim they edited an issue with grammar or spelling, even if their actions were more nefarious.

Remember, you can’t turn this off. But there is a workaround if you or your client are willing to turn off iMessage (think blue bubbles on your iPhone) and convert to SMS (green bubbles). If you’re interested in doing that, go to Settings on your iPhone and scroll down to Messages. Once you’re on that screen, toggle the slider next to iMessage, which will turn it off. You’re now communicating only through SMS, and nobody can edit the texts they send to you. You do lose all the functionality of iMessage.

The other workaround is to make sure that agreements call for communication only through services that do not allow editing. These could be free things like email or by using paid services like Our Family Wizard (which allows you to edit but has a change log).

Maybe I’ve been too hard on iOS 16; after all, Facebook Messenger, Slack and other apps like Telegram allow you to edit messages. The difference is that these other programs are often a choice for the person to use. iMessage on iPhone is the default messaging service on your iPhone. Because many family law cases (and other cases in general) turn on the introduction of text messages, it is something that we all must ponder going forward.•