Legal Foundations
What is the primary federal law governing the interception of electronic communications, including text messages?
The Electronic Communications Privacy Act (ECPA).
Enacted in 1986, the ECPA governs the collection, use, and disclosure of electronic communications. It requires a subpoena or court order for non-content information and a search warrant for content. See 18 U.S.C. § 2510-2522.
What is the term for ensuring text messages are authentic and unaltered before admission in court?
Authentication
Florida Evidence Code Section 90.901 requires the proponent of evidence to produce sufficient evidence to support that the item is what it purports to be. Metadata or witness testimony can help establish authenticity.
What is the name of the process used to extract data from a smartphone for forensic purposes?
Mobile device forensics
Explanation: Mobile device forensics employs specialized tools like Cellebrite to access, preserve, and analyze smartphone data while maintaining admissibility.
If a witness refuses to unlock their smartphone, what legal action can be taken to compel access?
File a motion to compel and/or seek a court order.
Florida Rule of Civil Procedure 1.380 provides mechanisms to compel discovery, including access to electronic devices.
Is it ethical to use spyware to collect evidence from an opposing party's smartphone?
No.
It is a violation of privacy laws and professional conduct rules.
Rule 4-8.4(c) of the Florida Rules of Professional Conduct prohibits dishonest or fraudulent actions, including unauthorized spyware use.
What standard must be met for obtaining text message records from a phone carrier?
A subpoena or court order, depending on the jurisdiction.
Under the ECPA and Florida Statutes Chapter 934, content records require a warrant, while metadata can be obtained via subpoena. Courts in Florida may require specific factual showings to issue orders.
Under which Federal Rule of Evidence can text messages be admitted as an exception to hearsay?
Rule 803, commonly under the business records or present sense impression exceptions.
Under Rule 803(6) and Rule 803(1), text messages can be admissible if created during the regular course of business or as a contemporaneous statement about an event. Florida’s analog is Section 90.803.
Name one software commonly used for retrieving deleted text messages from a smartphone.
Answer: Cellebrite or Magnet AXIOM.
Explanation: These tools are industry standards for extracting data without altering it, ensuring chain of custody.
True or False:
Screenshots of text messages are always sufficient for admission in court.
False.
Screenshots lack metadata and are subject to authenticity challenges. Florida courts prefer forensic data extraction for reliability. See State v. Green, 320 So. 3d 771 (Fla. 1st DCA 2021).
What should a lawyer do if they discover potentially privileged text messages during a forensic review?
Notify opposing counsel and follow court procedures for resolving privilege issues.
Rule 4-4.4(b) of the Florida Rules of Professional Conduct requires prompt notification of inadvertently received privileged information.
Which amendment to the U.S. Constitution primarily governs privacy issues related to smartphone evidence?
The Fourth Amendment.
The Fourth Amendment protects against unreasonable searches and seizures. In Riley v. California, 573 U.S. 373 (2014), the Supreme Court held that searching a smartphone requires a warrant due to the wealth of private information stored on such devices.
What kind of metadata is often required to prove the authenticity of a text message?
Timestamp, sender, and recipient information.
Explanation: Metadata corroborates the origin and timing of a message. Courts in Florida accept this alongside circumstantial evidence or witness testimony under Section 90.901.
What type of encryption poses challenges for accessing smartphone evidence?
End-to-end encryption ensures only the sender and recipient can decrypt messages, requiring legal and technical methods to obtain access.
When collecting smartphone evidence, what is the term for ensuring the data remains unchanged during collection?
Maintaining chain of custody
Proper chain of custody ensures the evidence has not been altered. Fla. Stat. § 90.901 emphasizes this requirement for admissibility.
True or False:
Lawyers can advise clients to delete text messages after litigation has started.
False.
Deleting evidence constitutes spoliation, violating Rule 4-3.4(a) of the Florida Rules of Professional Conduct.
Under Florida law, what statute governs the interception of wire, oral, or electronic communications?
Florida Statutes Chapter 934, also known as the Florida Security of Communications Act.
This statute mirrors the federal ECPA but includes stricter provisions, such as requiring all parties to consent to recording communications. See Fla. Stat. § 934.03.
Under Florida law, what must be demonstrated to authenticate a text message for admissibility?
Correct Answer: Evidence must show that the message was sent or received by the party claimed, which can include metadata, testimony, or circumstantial evidence.
Explanation: In Florida, corroborating evidence such as admission by the sender or forensic analysis is often required. See Lamb v. State, 246 So. 3d 400 (Fla. 4th DCA 2018).
Under Florida law, can law enforcement compel a suspect to unlock a smartphone using biometric data?
Yes, courts in Florida have ruled that biometric unlocking (such as fingerprint or facial recognition) can be compelled, but not passcodes.
Compelling biometric data does not violate the Fifth Amendment, as it is not considered testimonial. See Fla. Stat. § 934.50.
In Florida, what must be included in a subpoena to a phone carrier for text message records?
The subpoena must specify the records sought and comply with Florida's privacy and evidence rules.
Courts require narrowly tailored requests that balance privacy concerns under Fla. Stat. § 934.23.
Under Florida's Rules of Professional Conduct, what obligation does an attorney have regarding inadvertent receipt of privileged text messages?
The attorney must promptly notify the sender and follow procedures to determine proper handling of the materials.
Florida Rule of Professional Conduct 4-4.4(b) provides that an attorney who receives materials that they know or reasonably should know were inadvertently sent, has an obligation to promptly notify the sender and refrain from reviewing the materials further until the matter is resolved.
Does Florida require two-party consent for recording phone calls or other communications?
Yes, Florida is a two-party consent state under Chapter 934.
Fla. Stat. § 934.03 mandates that all participants in a communication must consent to recording, except in limited circumstances such as law enforcement with a valid warrant.
In Florida, what rule governs the admissibility of electronic records such as text messages?
Correct Answer: Florida Evidence Code Section 90.803(6), the business records exception, and Section 90.901 for authentication.
Explanation: These rules allow electronic records if they are authenticated and meet an exception to hearsay. Proper chain of custody is also critical.
BONUS QUESTION:
What Florida case emphasized the need for a warrant to search a smartphone in line with Riley v. California?
Smallwood v. State (2013).
This pre-Riley case addressed similar issues under Florida law, highlighting the importance of warrants for smartphone searches. See 113 So. 3d 724 (Fla. 2013).
True or False:
In Florida, deleted text messages retrieved through forensic analysis are automatically admissible.
False
Deleted messages require forensic authentication and must meet Florida Evidence Code standards. See State v. Power, 321 So. 3d 203 (Fla. 2d DCA 2021).
In Florida, can attorneys directly request text message evidence from opposing parties without involving the court?
No.
Attorneys (and parties) must follow discovery procedures under the Florida Rules of Civil Procedure.
Rule 1.280 governs discovery, requiring formal requests to ensure procedural fairness.