AUTOMATICALLY DELETING TEXT MESSAGES VIOLATES THE LAW

This article drew my attention recently.  The article concerns the Long Beach California Police Department’s use of a product called Tiger Text.  The Tiger Text app erases text messages after a set time.  Once erased, the messages can’t be retrieved even through forensic analysis.

The problem with this of course is that it destroys public records, at least potentially.  I qualified my comment because not every text message – even those sent and received by public servants on government issued devices – is a public record.  A truly personal message doesn’t document public business, and for that reason isn’t subject to public record retention or production requirements.  So it would be wrong to say that the Long Beach Police violated their duties with every deleted message.

But the flip side of that coin is that it’s equally wrong to assume that every text message isn’t subject to the applicable public records act.  The format of a record doesn’t — and shouldn’t – determine its public record status.  A substantive communication from or to a public office is a public record, whether it’s hand written, typed, faxed or texted.  It is the content of the communication, not the format that dictates its status.  That seems like a common sense approach to the issue.  But a police department that  installs a text destroying app must assume that the format is the determining factor.

The good news is that Long Beach Police have apparently suspended its use of the app.

The bad news, however, is that it doesn’t take an app to violate the law.  This article indicates that one outcome of the recent investigation into Ohio State University coach Urban Meyer is that OSU Athletic Director Gene Smith routinely deleted all texts after sending or receiving them.  A personal habit that results in deleted messages is just as bad as an app.

So it really doesn’t matter if it’s a human or a bot that deletes the messages.  Either way it’s a violation.  What is required is an institutional commitment to transparency, better training, and a clear message from the top that “hiding the ball” is unacceptable.   That’s true for the Long Beach police and the OSU athletic department.