MSU Law Faculty in the News
Kilpatrick can try blocking arguments, but it may take legal miracle to bar electronic notes
April 8, 2008
The Detroit News, Editorial
By Adam Candeub
Detroit Mayor Kwame Kilpatrick's text messages hold interest not only for the supposed salaciousness they contain and the duplicity they allegedly reveal but also for a legal question they pose: Will they be admissible at trial? Without them, Wayne County Prosecutor Kym Worthy's case would be weakened considerably.
Kilpatrick's lawyers have their work cut out for them. Unless new facts emerge, those text messages are likely going in.
Kilpatrick's defense lawyer, Dan Webb, suggests a federal statute, the Stored Communications Act, will bar admission. Indeed, this statute makes it both a crime and civil violation with monetary damages to disclose the contents of stored electronic communications like e-mails or text messages.
Skytel, the text messages service provider, originally produced the stored copies of the messages in a whistle-blower civil lawsuit that fired Detroit police officers filed against the city of Detroit and the mayor.
The first problem for Kilpatrick's lawyer is that the federal law explicitly permits Skytel, and companies in a similar position, to release the contents of text messages if a court in a criminal proceeding so orders. If a valid subpoena were issued in this case, that likely would be the end of the matter.
Even more difficult for Kilpatrick is that the federal law's remedies do not include exclusion of evidence.
Violations for constitutionally protected privacy interests, like a warrantless police search of your home's interior without the police having probable cause that you were up to no good, receive a powerful remedy: the exclusion from trial of all evidence gathered at and as a result of that unconstitutional search.
In contrast, courts have been unwilling to extend Fourth Amendment protections to e-mails, stored text messages and other stored electronic communications, particularly those involving work accounts like Kilpatrick's.
The federal remedies for violating your privacy rights in these situations are primarily found in the Stored Communication Act. Its exclusive remedies include permitting suits against the service providers that illegally divulged their records. The law says nothing about exclusion of evidence. The Stored Communications Act allows Kilpatrick to sue Skytel for divulging the instant messages, but the mayor can't use the federal law to bar their admission at trial.
On the other hand (and, in law, there usually is another hand), the text messages may face potholes on the way to admission into evidence.
It is not clear how the plaintiff's attorney in the whistle-blower lawsuit learned of them.
Under recent court rulings, the Stored Communications Act would not allow SkyTel to produce the stored messages in civil litigation -- like the police whistle-blower suit.
It may well be that their production during the lawsuit was illegal or their subsequent distribution violated a court discovery order. If so, few individuals would likely admit to releasing or obtaining the messages. Kilpatrick's legal team may be able to use these possible improprieties to block the introduction of the instant messages into evidence. It's a long shot.
We must stay tuned to see how it plays out.
Adam Candeub is an associate professor of law and acting director of the Intellectual Property & Communications Law Program at Michigan State University.