SMS and the law

The high-profile Glenn Agliotti case has once again highlighted the role cellphones and SMS unsurprisingly play in the law. Unsurprisingly, because cellphones are such an essential part of everyday lives, and track just about all movement and communication.

In the Agliotti case, Clinton Nassif's cellphone records were subpoenaed by the court from Vodacom, and the times of calls and messages were used to show that the former security consultant had lied in previous testimony about his communication with Agliotti.

Later, in the same trial, MTN was wrapped over the knuckles for not waiting to receive a Section 205 subpoena before releasing Agliotti's cellphone records.

From a crime prevention point of view, SMS is immensely powerful, thanks to its ability to allow anonymous tip-offs. The Primedia Crime Line service, which was launched in June 2007 and offers an SMS tip-off line, has resulted in 941 arrests, and the recovery of more than R35.7 million worth of stolen property, drugs and counterfeit goods.

SMS also has the capacity to quickly and easily reach a large number of people on the move, and is used effectively by the police force to co-ordinate and receive information from mobile volunteers, and also by neighbourhood watch schemes.

When it comes to law enforcement, SMSes are considered to be written documents, according to the Electronic Communications and Transactions Act (ECT Act), and are admissible as evidence in both a criminal and civil court case. Just like an ordinary document would be assessed by the court to determine its integrity and evidential weight - for instance, an original copy of a document with signatures would count more than a poor photocopy - SMSes are assessed based on their electronic details, including when they were created, sent, modified or delivered.

SMSes are considered to be written documents.

Dr Pieter Streicher is MD of BulkSMS.com.

As with any other evidence, and as seen in the Agliotti trial, a subpoena is needed to access an individual's cellphone records. The regulation of Interception of Communications and Provision of Communication-related Information Act (more popularly known as RICA) has been put in place specifically to make it easier to connect a cellphone account with a specific individual.

From a practical point of view, SMS can also be very helpful in making the courts run smoothly. Simply by texting a witness the details of their court appearance and any delays can make the courts run more efficiently. Likewise, lawyers can use SMS to keep their clients up to date with lengthy legal processes.

As mentioned above, SMSes are legally equivalent to written documents and so written contracts may be legally concluded via an SMS. Saved SMSes are also adequate proof that a contract has been entered into. SMSes can therefore be immensely useful in confirming and keeping a record of verbal agreements.

Although spoofing - where a message appears to come from someone it doesn't - is possible, by comparing the network logs with the billing logs, courts can establish whether or not a message was sent from a specific cellphone account.

In light of the fact that SMSes can serve as written contracts, companies need to consider how to archive the SMSes their employees send. King III specifically requires company directors to manage foreseeable risks arising from the use of ICTs. In addition, other legislation specifies that certain records be archived for a minimum amount of time.

Companies should consider using a desktop SMS application that backs up sent and received SMSes, rather than having their employees use their handsets, in order to comply with the law.

But, company cellphones fall into the same category as any other company electronic equipment. As long as the employer can show they have informed the employee about the company policy with regards to monitoring electronic communications, and that the employee has accepted, the employer may access employee communications.

The cellphone's inherent features make it a useful tool in tracking communications, allowing it to aid in law enforcement and crime prevention. An SMS may only be 160 characters long, but legally, it has the same clout as far lengthier communications and should be handled accordingly.