Text messages are everywhere.
Governments, hospital staff, and school districts use them to keep us in the loop. But because texts can be both private and public records, things get tricky.
To make sure everything stays secure and compliant, the US government has put a lot of rules in place. But with cybercrime on the rise and texting being so convenient, it’s no surprise these rules can be pretty confusing.
In this article, we’ll cover the text messaging laws in each state and answer two common questions — are text messages admissible in court and are they public records?
Can Texts Be Used in Court?
Text messages are viable digital evidence in the eyes of the court for both civil and criminal litigation.
To be considered evidence and be usable in court, text messages need to meet certain criteria:
- Authenticity — The text messages need authentication to verify they were sent and received by the parties involved. This involves showing that the device used to send the messages was under the control of the sender at the time the messages were sent.
- Relevance — The messages must directly be related to the case. Only texts that pertain to the matters at hand will be considered.
- Integrity — It is crucial to demonstrate that the text messages have not been tampered with or changed from their original form.
However, even if all three criteria are met, the viability of text messages as evidence and their impact on the case varies state by state.
Are Text Messages Public Records?
Yes, text messages can be considered public records, depending on the context and jurisdiction.
In many states within the U.S., if the text messages are sent or received by government officials or employees in the course of conducting public business, they are often subject to public records laws.
These laws vary by state, but generally, any communication that pertains to official duties, regardless of the medium, can be subject to public records requests and retention requirements.
Here are a couple of examples:
- State and local governments — Many states have specific laws that define what constitutes a public record. If a government employee uses text messaging to discuss public business, those messages may need to be preserved and could be subject to disclosure under Freedom of Information Act (FOIA) or similar state laws.
- Federal government — At the federal level, communications of government officials, including text messages, may be considered public records under the Federal Records Act and can be subject to FOIA requests.
As for the retention requirements, public agencies are often required to retain these messages for a specified period, ensuring they can be accessed in response to public records requests.
Agencies need to have text message retention policies and systems in place to capture and archive these messages to ensure compliance with applicable laws.
It’s important for public officials and employees to be aware of their obligations regarding text messages and other forms of electronic communication to ensure transparency and accountability in government operations.
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Text Message Privacy Laws by State
Every state has its own laws and regulations regarding text messaging and how they can be used as evidence.
Let’s go over each text message record law in detail.
Use the following table to quickly find the exact state’s text message privacy laws you’re looking for.
Alabama
The Alabama Public Records Law provides access to “public writings”, which includes electronic records.
Though it does not directly reference text or instant messages, they aren’t treated differently than any other form of electronic communication subject to the Public Records Law.
When law enforcement demands cell phone location data, only the name of the officer making the request and the date of the request are subject to the Open Records Act, and can only be disclosed after the conclusion of the criminal investigation or prosecution.
Alaska
In Alaska, the Public Records Act includes communications sent or received by public officials in the execution of their official duties.
While text messages are not explicitly mentioned, they fall under the definition of public records if they concern public business. Privacy laws ensure that texts are only accessible under certain conditions to protect the integrity of personal information.
Disclosure requirements do not cover personal texts of government officials unless they pertain directly to public affairs.
Arizona
Arizona’s Public Records Law covers all records, including texts, related to official business conducted by public officials.
The state assumes that all records, electronic or otherwise, that have a substantial link to governmental activities should be accessible to the public.
However, this accessibility is subject to exclusions for personal privacy and sensitive information.
Specific statutes require that any requests for these records must clearly specify the documents sought and prove their relevance to government business.
Arkansas
Arkansas’s Freedom of Information Act (FOIA) defines public records as writings, videos, tapes, audio, and electronic information prepared, owned, used, in the possession of, or retained by a public agency.
Text messages that involve any government-related communications by state officials are considered public records and are thus subject to disclosure under this act.
There are significant limitations regarding the personal privacy of individuals, ensuring that texts of a purely private nature are exempt from disclosure.
California
California’s Public Records Act (CPRA) treats electronic communications, including text messages, as public records if they are used to conduct public business.
This law applies regardless of whether the communication device is personally owned or provided by the government.
Certain exemptions protect personal privacy and security, and any texts that do not pertain to public affairs may be withheld from disclosure.
Colorado
Colorado’s Open Records Act (CORA) includes provisions for the disclosure of electronic records, including text messages related to the conduct of public business by state officials.
However, personal texts and communications unrelated to official duties are exempt. Additionally, there are strict rules protecting sensitive information from being disclosed.
Colorado law requires that all requests for public records be submitted in writing and be specific about the records sought.
Connecticut
Under Connecticut’s Freedom of Information Act (FOIA), all records of public agencies are available to the public unless specifically exempt by law.
This includes text messages sent or received in connection with the conduct of public business. The state emphasizes transparency but also respects privacy when it comes to purely personal communications that do not involve state affairs.
Connecticut’s law also includes provisions to prevent the disclosure of information that would legally invade personal privacy.
Delaware
Delaware’s Freedom of Information Act (FOIA) includes all electronic records such as text messages, if they are related to public business and are produced by, or for a public body.
Delaware’s FOIA protects personal information and communications unrelated to public duties, thereby securing privacy for personal texts of government officials.
Florida
Florida’s Sunshine Law is one of the most comprehensive public records laws in the United States, covering all materials made or received by public officials in the course of their official duties, including text messages.
Florida law requires these records to be available for public inspection unless specifically exempted by the state legislature.
Texts that involve security, criminal investigative information, or are purely personal are exempt from disclosure under this law.
Georgia
Georgia’s Open Records Act explicitly includes electronic communications, such as emails and text messages, within its definition of public records.
As long as these communications are related to public business and not purely personal affairs, they must be retained and accessible to the public.
Exceptions include records that would compromise security against criminal or terroristic acts, or invade personal privacy.
Hawaii
Hawaii’s Uniform Information Practices Act (UIPA) classifies all government records, including electronic communications like text messages, as public unless specifically exempted.
This openness is designed to enhance transparency in government operations.
Exemptions include texts that involve personal privacy, and proprietary information, or could threaten public safety if disclosed.
Idaho
Idaho’s Public Records Law covers electronic communications related to public business, defining these as part of public records.
Text messages sent or received by government officials in the course of performing their duties are accessible to the public, barring any content that involves purely personal matters or is protected under specific privacy exemptions.
Idaho emphasizes the necessity to balance public access with individual privacy protections.
Illinois
The Illinois Freedom of Information Act (FOIA) stipulates that all governmental records, including electronic communications like text messages, are presumed open to the public.
This presumption applies unless there is a specific exemption that justifies withholding a record.
Illinois law protects sensitive personal information and any private communications unrelated to public duties.
Indiana
Indiana’s Access to Public Records Act includes provisions that treat text messages as public records if they are used in the official conduct of public business.
The state ensures that public access to such records fosters accountability.
Personal texts or those not related to public business are not subject to disclosure under this act.
Iowa
Iowa’s Public Records Law considers all forms of electronic communication, including text messages, as public records if they pertain to public business.
This inclusion is part of the state’s commitment to transparency and public oversight of governmental activities.
Exemptions include personal communications and any records that, if disclosed, would jeopardize individual privacy or safety.
Kansas
Kansas Open Records Act explicitly mentions electronic records in its coverage, thereby including text messages within the ambit of public documentation if they relate to government business.
Kansas protects records that contain personal details or are related to security measures from public access.
Kentucky
Kentucky’s Open Records Act includes text messages under the umbrella of public records if they are related to the conduct of public business.
Kentucky law protects personal communications and any sensitive security-related information from public disclosure.
Louisiana
Louisiana’s Public Records Law treats all records, including text messages, as public if they are created, received, or retained in the conduct of public business.
This broad inclusiveness aims to facilitate an open government.
Exceptions are made for personal privacy and communications that may affect public security if disclosed.
Maine
The Maine Freedom of Access Act covers electronic records, including text messages, under its definition of public records.
Text messages must relate to public business to be considered public records and thus accessible to the public.
Maine specifically exempts private communications that do not pertain to state business and any record whose disclosure would constitute an invasion of privacy.
Maryland
Maryland’s Public Information Act recognizes electronic communications, including texts, as public records when they pertain to government business.
The state emphasizes the importance of transparency but also acknowledges the need to protect sensitive information and individual privacy.
Maryland excludes personal texts of government officials and any communications that could jeopardize security operations from this accessibility.
Massachusetts
The Massachusetts Public Records Law applies to all governmental records, including text messages related to official duties.
The law ensures that public access to these records is straightforward, promoting transparency and accountability within the state government.
Exceptions are made for records involving personal privacy, and specific guidelines protect sensitive information from being publicly disclosed.
Michigan
Michigan’s Freedom of Information Act (FOIA) defines public records as including electronic communications like text messages if they are used in the performance of an official function.
The state’s strong stance on public access to government records includes detailed provisions for electronic records management.
Personal and irrelevant communications, as well as any sensitive security details, are not considered public records in Michigan.
Minnesota
Minnesota’s Government Data Practices Act explicitly includes electronic communications, such as text messages, within the definition of government records.
This law mandates that any records related to the conduct of public business are accessible to the public, enhancing transparency and accountability.
Personal texts and those that do not pertain to public duties are exempt from this requirement, as well as texts that could compromise personal privacy or public safety.
Mississippi
Mississippi’s Public Records Act of 1983 ensures that all records, including electronic communications such as text messages, are accessible if they pertain to the conduct of public business.
The state champions transparency, but also balances this with privacy protections.
Text messages that contain personal information or are unrelated to public business are not considered public records under this act.
Missouri
Missouri’s Sunshine Law encompasses electronic records, including text messages, as part of the public record if they relate to public business conducted by government officials.
This inclusion aims to keep governmental operations transparent to the public.
Exceptions are made for records that involve personal privacy issues or security concerns.
Montana
Montana’s Public Records Act treats all forms of electronic communication, including text messages, as public records if they are associated with the conduct of public business.
This law underscores the state’s commitment to an open government.
Personal communications and sensitive security information are protected from disclosure.
Nebraska
Nebraska’s Public Records Laws assert that all governmental communications, including those sent via text message, are considered public records if they pertain to public business.
The state promotes transparency and ensures public access to government operations.
Private texts or those not related to official duties are exempt, and there are stringent protections for personal privacy and security details.
Nevada
Nevada’s Public Records Act includes electronic communications, like text messages, in its definition of public records, provided they relate to the conduct of public business.
This approach is part of Nevada’s broader efforts to ensure governmental transparency and accountability.
Texts that are personal or involve sensitive information are not subject to public disclosure under this act.
New Hampshire
New Hampshire’s Right to Know Law includes electronic communications, such as text messages, within its scope of accessible public records if they pertain to public business.
This law supports transparency by ensuring that communications by government officials in the conduct of their duties are open to public scrutiny.
Private communications unrelated to public business and those involving sensitive personal or security information are exempt from disclosure.
New Jersey
New Jersey’s Open Public Records Act (OPRA) recognizes text messages as public records if they are related to official government business.
The state emphasizes the importance of public access to such records to foster transparency and accountability in governance.
Text messages that are purely personal in nature or that could compromise personal privacy or public security are not accessible under OPRA.
New Mexico
New Mexico’s Inspection of Public Records Act ensures that electronic communications, including text messages, are considered public records when they relate to public business.
This includes communications by government officials and public employees.
The law protects personal texts and any communication that could jeopardize personal privacy or the integrity of state operations.
New York
New York’s Freedom of Information Law (FOIL) includes text messages in its definition of public records if they document official business or decisions made by public officials.
The state’s commitment to openness allows public access to these communications, subject to certain limitations to protect personal privacy and security.
Exemptions include personal communications and sensitive information that could endanger individuals if disclosed.
North Carolina
North Carolina’s Public Records Law states that text messages if related to the transaction of public business by government officials, are public records.
This transparency ensures that the public can access and review the conduct of public affairs.
Personal and irrelevant texts, as well as those involving confidential information, are protected from disclosure.
North Dakota
North Dakota’s open records laws define public records to include electronic communications such as text messages when they pertain to public business.
This law promotes transparency and accountability in government operations.
There are specific provisions that safeguard personal privacy and sensitive government information, ensuring that such texts remain confidential.
Ohio
Ohio’s Public Records Act recognizes text messages as public records if they are associated with the conduct of public business by state officials and employees.
This law underscores Ohio’s commitment to government transparency and accountability.
Private communications and texts involving personal or sensitive information are protected from public disclosure.
Oklahoma
Oklahoma’s Open Records Act includes text messages among the types of electronic communications that are considered public records when they relate to the transaction of public business.
The state ensures broad public access to these records to foster transparency.
Exceptions include personal texts and communications that may affect the security or privacy of individuals or operations.
Oregon
Oregon’s Public Records Law broadly defines public records to include text messages related to the conduct of public business.
This definition is part of Oregon’s effort to ensure that all forms of communication used in government operations are transparent and accessible to the public.
The law protects personal privacy by exempting texts that do not pertain to public duties and those containing sensitive personal information.
Pennsylvania
Pennsylvania’s Right to Know Law defines public records as those that document a transaction or activity by an agency.
This includes electronic communications like text messages, provided they pertain to public business. The state values transparency while also respecting the privacy of non-public communications.
Personal texts or those unrelated to official activities are not considered public records.
Rhode Island
Rhode Island’s Access to Public Records Act (APRA) includes electronic communications such as text messages in its scope, as long as they relate to public business conducted by government officials.
The law is designed to promote open government and accountability.
There are safeguards to protect personal privacy and confidential information from being disclosed.
South Carolina
South Carolina’s Freedom of Information Act treats text messages as public records if they are related to the conduct of public business.
This treatment supports the state’s commitment to transparency and ensures that governmental communications are open to public inspection.
Exemptions apply to personal communications and texts involving sensitive information that, if disclosed, could compromise privacy or security.
South Dakota
South Dakota’s Open Records Law asserts that all records, including electronic communications such as text messages, which are related to the conduct of public business, are considered public records.
This law aims to promote transparency and allows the public to access information about government operations.
Texts that are personal in nature or contain sensitive information are exempt from disclosure to protect individual privacy and security.
Tennessee
Tennessee’s Public Records Act includes text messages as part of the public records if they pertain to official public business conducted by government officials.
The state emphasizes the need for transparency and public oversight of government activities.
Exceptions are made for personal communications and any records whose release could jeopardize personal privacy or public safety.
Texas
Texas Public Information Act categorizes text messages as public records when they are involved in official government business.
This inclusion is part of Texas’s broader initiative to maintain an open government.
There are protections against disclosing personal messages and sensitive information that could harm the public interest if released.
Utah
Utah’s Government Records Access and Management Act (GRAMA) treats all electronic communications, including text messages, as public records if they relate to the conduct of public business.
Utah law is comprehensive in its inclusion of digital communications to ensure government transparency.
Personal or unrelated texts, as well as those containing confidential information, are not subject to public access.
Vermont
Vermont’s Public Records Law recognizes text messages as public records if they are associated with the conduct of public business by government officials.
The state is committed to transparency but also respects the privacy of government officials by exempting purely personal communications from disclosure.
Specific guidelines protect sensitive information from being accessed by the public.
Virginia
Virginia’s Freedom of Information Act (FOIA) includes text messages in the definition of public records, provided they are related to public business and are prepared, owned, or used by a public body.
Virginia aims to foster openness in government while safeguarding personal privacy and security.
Exclusions apply to personal texts and communications that involve security details or sensitive operations.
Washington
Washington State’s Public Records Act broadly includes electronic communications, such as text messages, as public records when they pertain to the conduct of public business.
This approach is part of the state’s strong commitment to transparency and public access.
Texts that are personal in nature or involve sensitive security information are exempt from disclosure to protect privacy and operational integrity.
West Virginia
West Virginia’s Freedom of Information Act (FOIA) treats electronic communications, including text messages, as public records if they are related to the conduct of public business by government officials.
Personal and non-business-related communications are protected from public disclosure to maintain privacy and confidentiality.
Wisconsin
Wisconsin’s Public Records Law includes text messages within the scope of public records when they document official public activities or decisions.
The state ensures that these communications are accessible to the public to support transparency and accountability.
There are safeguards in place to protect texts that are personal or not related to government business, as well as sensitive information that could compromise security.
Wyoming
Wyoming’s Public Records Act recognizes all forms of electronic communication, including text messages, as public records if they are made or received in the course of official business.
The law exempts personal communications and any sensitive information that, if disclosed, would jeopardize personal privacy or state security.
Are Screenshots Enough?
Screenshots of text messages can be relevant evidence, but their admissibility and reliability may be challenged for several reasons:
- Authenticity — Screenshots are images, and can be easily manipulated using various editing tools like PhotoShop. This makes it difficult to verify the authenticity of the message and whether it accurately represents the original conversation.
- Context and completeness — A screenshot may only capture a part of the conversation, potentially omitting important context that could alter the meaning or interpretation of the messages.
- Metadata — Screenshots lack metadata, such as the date and time the message was sent or received, the sender’s and recipient’s information, and any edits made to the message after sending. This metadata is crucial for establishing the authenticity and context of the messages.
- Chain of custody — For evidence to be admissible in court, a clear chain of custody must be established, demonstrating that the evidence has been preserved and handled in a way that prevents tampering. Screenshots can be difficult to authenticate in this regard compared to more secure digital evidence collection methods.
- Technical limitations — Screenshots can’t capture certain aspects of the conversation, such as message delivery status, read receipts, or attachments (e.g., images, videos, files) that might be relevant to the case.
Courts have established specific standards for digital evidence.
Original digital records, which can be extracted and preserved using special ediscovery tools, are generally preferred because they are more reliable and can be authenticated through technical means.
To overcome these challenges, it’s often better to use specialized software to extract and preserve text messages directly from the device or server, ensuring that all relevant information, including metadata, is captured and that the integrity of the evidence is maintained.
Having a proper text message archiving solution like Jatheon is key.
It will allow you to capture all incoming and outgoing text messages and retain them for prolonged periods of time, as well as monitor conversations and detect non-compliance proactively.
If faced with a lawsuit or an HR dispute, you’ll be able to access and retrieve text message records fast and act on time.
Jatheon works with all major global carriers, with both BYOD and employer-issued devices.
Summary of the Main Points
Here’s everything we covered in a nutshell:
- Text messages can be used as evidence in court.
- To be admissible, they need to meet three criteria: authenticity, relevance, and integrity.
- To prove authenticity, you need to prove that the parties in question did send actual messages.
- To prove relevance, you need to prove that the content of the message is relevant to the case.
- To prove message integrity, you need to prove that the messages haven’t been tampered with or altered in any way.
- Every state has its own views on how text messages should be treated in open requests and ediscovery. Archived and knowing every law in detail is crucial for full compliance.
- In some cases, text messages can be legally binding on both personal and company-provided phones, making compliance that more hard to maintain.
- Screenshots of text messages can be relevant evidence, but their admissibility and reliability may be challenged.
- Original digital records, which can be extracted and preserved using special ediscovery tools, are generally preferred because they are more reliable and can be authenticated through technical means.
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