Mobile Messaging and Electronic Discovery: Part 1 of 4

October 2, 2012

Mobile Data PrivacyThis four part series examines the application of electronic discovery laws to mobile communications, and how the relationship between the two raises a litany of unique issues regarding privacy, data retention, and production.

Do you remember when there were two party phone lines or when a melodious-voiced operator would ring your phone and say “please hold, there is a long distance call for you”?

Well, those halcyon days are over and the entire world of communications (if you are over 45 years old), is on a rocket to the stars where your voice, instant messages (IMs), Twitter feed and email careen through the star studded universe and ultimately arriving at their intended destination.

Welcome to the world of mobile messaging. The Operator has been fired, and the Satellite has been hired.

The constantly evolving universe of mobile messaging has a significant impact on litigation in the area of mobile electronic discovery. Mobile operating systems and other related software, such as Google’s Android, Apples iOS, RIM’s Blackberry OS, and Microsoft® Office Mobile applications, help deliver a desktop-like experience to small devices. Powerful processors, cheap availability of large amounts memory make the mobile device a robust business tool.

While laws concerning electronic discovery are front and center, its application to mobile communications which merges oral and data communications, presents a new frontier that raises a litany of unique issues regarding privacy, data retention, and production. This four-part series of blog posts examines those issues.

While it may seem obvious, in the world of constantly changing technology, we should define mobile messaging. Mobile Messaging refers to your ability to send and receive short test-based messages via mobile phones using the Short Message Services (SMS, also known commonly as text messaging) function. As mobile network systems and mobile phones advance, it has become possible to send more complex data such as group text messages and Multimedia Messaging Service (MMS), which allows users to send pictures, ringtones, and videos.

The convenience and simplicity of SMS, combined with the evolution of pricing models (especially unlimited SMS bundles), have contributed to a significant growth of the SMS market in the U.S. and Europe over the past few years. According to a Yankee Group 2008 study, U.S. consumer base for SMS messaging grew at an annual compound rate of 28% between 2003 and 2008. According to a recent Nielsen study of cell-phone usage, the average number of monthly texts for a 13- to 17-year-old teen is 1,742. One California teenager (apparently fearless of parental authority) received national publicity for racking up 14,528 text messages in a single month.

In order to drive profits, innovative network developers and operators have developed specific platforms for SMS content provision, including billing of the end user on behalf of the content provider. Innovation will continue to increase the scope and complexity of mobile messaging and thus the complexity of the ensuing electronic discovery.

In the next installment I will discuss the origins of the mobile messaging and how data is transmitted between devices.

Mobile Messaging and Electronic Discovery (Part 1 of 4)

Mobile Messaging and Electronic Discovery (Part 2 of 4)

Mobile Messaging and Electronic Discovery (Part 3 of 4)

Mobile Messaging and Electronic Discovery (Part 4 of 4)
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