Delivering A Simple Text Does Not Always Send A Clear Message

By David Alexander

August 7, 2023

Delivering A Simple Text Does Not Always Send A Clear Message


By David Alexander

Texting image. Five individuals huddled around their phones while texting.

We can be our own worst enemies when we use technology because its familiarity can put us in denial about its risks and shortcomings.

Using a standard Short Message Service is a daily occurrence for anyone who sends text messages from one phone to another through a cellular data network.

The simplicity of SMS texting is its greatest advantage, but also its biggest detriment.

It saves time because it can be done anywhere, it provides an efficient manner for rudimentary tasks such as scheduling appointments or a court date reminder, and it is the most common way that clients expect to receive and send perfunctory communication. However, it does not lend itself to delivering sophisticated materials or supplemental documents whether they be print, audio or video files.

That was the theme of a recent webinar replay on maintaining confidentiality while communicating through texting.

Marissa J. Moran, professor in the law and paralegal studies department at New York City College of Technology, CUNY, and Alexander Paykin, managing director of The Law Office of Alexander Paykin, spent about 75 minutes discussing the advantages and pitfalls of using the technology to communicate with clients.

Moran said that the benefits of texting include responsiveness as clients don’t often read emails instantly and a phone call may be too burdensome.

“The key to the attorney-client relation is communication and SMS texting is very popular. Simply put, we use texting in our daily lives and tend to prefer over calling,” said Moran.

She added some startling statistics. Americans are twice as likely to text than call and text messaging has a 209% higher reply rate than a phone call, email or Facebook. In addition, 85% of consumers prefer to receive an SMS as opposed to a phone call or email.

The downside to SMS texting is that those messages are not encrypted. Attorneys should always use third-party applications when delivering sophisticated communications. Lawyers should have defined procedures on how they will use various types of electronic communications tools and should include a disclaimer in their engagement letters about the dangers of using text and sending faxes and emails.

“The biggest problem with technology and with all technology has always been and will always be the user,” said Paykin. “You can do everything on your end to protect the data, but if you’re sending that data, whatever form it may be in, whatever app you’re using, no matter how secure and encrypted the product, if on the other side sits a person who uses that phone to browse non wonderful websites, it’s entirely possible that they’ve already got malware on their phone and whatever it is you sent has just fallen into the wrong hands.”

This is a rising concern with the normalization of text messages being submitted into evidence, as illustrated in a Time Magazine story from July 2022. The courts have stepped in to regulate its use, most notably when the U.S. Supreme Court ruled in Riley v. California that a warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional under the Fourth Amendment.

Attorneys also need to be aware of data protection protocols that are in place. Cell phone providers keep records of text messages and specifics about a phone’s use are provided in billing statements sent to the owner. Also, the Consumer Telephone Records and Privacy Protection Act of 2006 helps shield the data from fraudulent acquisition and lays out possible penalties for the unauthorized disclosure of phone records.

Regardless, sophisticated communications beyond appointment and court reminders should be conducted through a third-party provider or a common business app, whether it be WhatsApp Business, Rocket.Chat, Threema or Telegram, all of which automatically encrypt messages to provide greater security than normal texting.

“it’s our responsibility to protect the clients’ data.,” said Paykin. “So first try to always use third party applications that have end to end encryption. Security is not a given when you’re using normal text messaging because you have no encryption, which means there is no security of any sort.”

In an update since the webinar originally aired, the FBI in April issued a warning to travelers to avoid using free, public phone charging stations that have been subjected to “juice jacking.” Hackers have figured out how to introduce malware and monitoring software onto a device through these stations. Travelers are instead advised to bring their own cables and plug those directly into an electrical outlet.

The FCC also recommended that travelers use charging-only cables that do not transfer data and to be aware of prompts that urge them to “share data” or “charge only” when using an USB port.

Please go here to register for the on-demand program.

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