- The Washington Times - Tuesday, June 8, 2004

DENVER - A few hours after NBA star Kobe Bryant had sex with a Vail-area hotel worker last summer, the woman exchanged cell phone text messages with a former boyfriend and someone else.

What is in those messages could help determine whether the sex was consensual or whether Mr. Bryant is guilty of rape as charged. Even the judge said the content might be “highly relevant” to the case.

That the judge could order the woman’s cell phone company to produce the messages so long after they were sent shouldn’t surprise anyone, analysts say.

Texters beware. Like e-mail and Internet instant messages, text messages tend to be saved on servers.

“One of the false assumptions that people make is that when they hit the delete button, messages are gone forever, but nothing can be further from the truth,” said Jeff Kagan, an independent telecommunications analyst in Atlanta.

The Bryant case appears to be the first high-profile U.S. criminal case in which cell phone text messages could be entered into the docket. In Europe and Asia, where text messaging is popular, some criminal cases have hinged on them.

In Sweden, police and prosecutors used text messages to prove that a nanny influenced by a pastor of a religious sect fatally shot his wife while she slept and then killed a neighbor next door with whom the wife was suspected of having an affair.

Police in southern Japan are examining e-mail and text messages as part of the investigation into the box-cutter killing of a 12-year-old girl, reportedly by an 11-year-old classmate.

In the United States, text messages had a role in a Medford, Ore., case in which a man convicted of killing his wife had sent e-mail and text messages to terrorize her. In Conyers, Ga., a 17-year-old boy was arrested for investigation of solicitation of sodomy after a 12-year-old girl’s parents complained of sexually explicit messages she had received.

In the Bryant case, defense attorneys said text messages were exchanged among the woman who has accused Mr. Bryant of rape and two other persons — the former boyfriend and a person still unidentified — in the hours after the incident last June.

Four months later, Mr. Bryant’s attorneys subpoenaed AT&T; Wireless Communications Inc., seeking the messages. The company fought the subpoena, but last month state District Judge Terry Ruckriegle ordered the company to turn over the messages to him.

Although some European countries require telecoms to store text-messaging content and other communications for law-enforcement purposes, no such requirement exists in the United States, said Barry Steinhardt, director of the Technology and Liberty Project of the American Civil Liberties Union.

Cellular text-message traffic has been increasing rapidly in the United States, hitting nearly 2.1 billion messages in December, the last month for which figures are available.

“I think in these days of corporate fraud, and in these days of terrorism, we’re seeing more and more reason to store forever,” Mr. Kagan said. “Don’t ever say anything on e-mail or text messaging that you don’t want to come back and bite you.”

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