Apple announced a new text messaging feature included in the iOS 16 update that may impact not only how conversations occur, but the presentation of evidence in litigation. The iOS 16 update is expected to roll out to many iPhone users in late 2022 and it will allow them to edit or unsend an iMessage even after it is delivered to the recipient. The Apple website states that the feature will allow iPhone users with the update to, “edit a message for up to 15 minutes after sending it and can unsend a message for up to 2 minutes after sending it.” Further, users can make up to 5 edits to a given message.
Use of Text Messages as Evidence
The iOS 16 update raises potentially serious issues in family law because in many cases, a significant portion of evidence is comprised of text messages between spouses/parents. Whether you are offering the evidence to a court at trial or to your own attorney to prove your version of events, the iOS 16 update gives people the ability to change a conversation entirely and create conflicting evidence. For example, if two spouses are in the middle of a contentious argument over text message, each spouse will now have the ability to edit or unsend a text (including a threatening, harassing or derogatory text) and completely change the conversation that took place. In theory, one spouse could edit their messages in a way that makes the other spouse look like the instigator rather than show the full conversation where both spouses were contributing to the conflict – or even worse, the editing spouse, who was actually the instigator or harasser, now appears to be the victim.
While it is currently unknown just how edits and unsent messages under the iOS 16 update will be reflected and for how long, the update will certainly create factual and evidentiary hurdles. Depending on how edits are reflected or whether the original messages will be retrievable in some manner, recipient spouses going through a divorce or separation (or a spouse receiving harassing or threatening messages) may need to constantly document text messages in real time (such as via screen shots) from their spouse to be able to show the true contents of the original conversation in the future. Other unanswered questions that need to be addressed after the update is released and utilized by spouses include: whether we will see Judges inquire into the authenticity of text messages with more scrutiny after this update and whether a party’s intentions in editing/unsending texts could be grounds for drawing a negative inference about that party’s credibility or ability to co-parent effectively? Further, how will unsent or edited text messages be considered when determining whether a protective order has been willfully violated? The full impact of the update is unknown and may unfold through trial and error over time. If you have a question about how electronic communications may potentially affect your case, you should reach out to an experienced family law attorney to get educated and obtain advice about how to best communicate with your soon to be ex-spouse and how to protect yourself.
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