The first text messages were sent during 1992 and 1993, although commercially, text messaging was not widely offered or used until 2000. Even then, messages could only be sent between users subscribed to the same wireless carrier, e.g., Sprint customers could only exchange messages with other Sprint customers. In November 2001, however, wireless service providers began to connect their networks for text messaging, allowing subscribers on different networks to exchange text messages.
Since then, the number of text messages in the United States has grown to over 48 billion messages every month. Additionally, text messages are no longer only sent as “point-to-point” communications between two mobile device users. More specifically, messages are also commonly sent from Web-based applications within a Web browser (e.g., from an Internet e-mail address) and from instant messaging clients like AIM or MSN.
Text messaging is rapidly eclipsing person-to-person telephone calls in the United States. In 2006, 65% of 18-29 year-old Americans and 37% of 30-49 year-old Americans used their cell phones for text messaging. In 2007, the use of text-messaging grew 67% over growth in 2006. In the 13-24 year-old group, survey respondents sent more than 50 text messages per week. So many text messages were sent just after midnight on New Year's Eve 2008 that networks jammed and many messages arrived hours late or never arrived at all.
Two major categories of legsl issues have arisen:
- “same problem, different platform” and
- issues stemming from the difficulty in applying existing technical definitions to a new service, such as whether a text message is sent “phone-to-phone” or using the phone’s associated email address.
An example of the first category would be consumer fraud and children’s accessing inappropriate content, which have existed previously in the “wired world,” but have now found their way to the “wireless world.” Another issue is driving while texting (see below).
An example of the second category would be that spam sent between two phones or from one phone to many phones (spim) does not fall under the definition of spam in the CAN-SPAM Act; however, if that same message were to be sent from a phone or computer using the phone’s associated e-mail address, it would.
Disclosure of text messages under freedom of information laws
Text messages are routinely used to conduct government business. As a result employers, litigants, newspapers, and public interest groups are increasingly seeking access to the contents of such communications in order to shed light on the workings of government. One of the arguments against disclosure of text messages emerging from public officials is that certain delivery platforms or technological devices should, by their very nature, be private because the official owns them, or keeps them in her pocket. Because text messaging represents a relatively new form of electronic communications, state and federal courts are considering requests for access to and disclosure of text messages pursuant to various freedom of information laws.
Courts have begun exploring ways to apply open government laws to text messages. In Texas, a state judge ordered the City of Dallas to turn over e-mails and text messages sent by city officials from personal accounts and personal hand-held devices to conduct city business, and held that the e-mails and messages were subject to disclosure under the Texas Public Information Act.”
Newspapers in Detroit, Michigan, filed a Freedom of Information Act (FOIA) lawsuit against the city seeking disclosure of text messages sent by Detroit elected officials on city-issued pagers that relate to the city’s $8.4 million settlement of two whistle-blower lawsuits brought by former Detroit police officers. The city has argued that disclosure of the text messages would violate the federal Stored Communications Act. A public records directive issued by the city states that an electronic communication sent on city equipment "is not considered to be personal or private." Although the newspapers obtained the text messages through an anonymous source, they continue to press for the release of additional information under public records law. A court ruled part of the information the newspapers wanted was public, the Free Press published text messages related to the cover-up and the Mayor and Chief of Staff were charged with eight felonies. The newspapers are continuing to pursue additional information using the state FOIA.
New York legislators worked to revise the state’s open records law to specifically add text messages to the list of records covered. A new Freedom of Information Law became effective in New York on August 7, 2008, and includes provisions which reflect a recognition of advances in information technology, but does not include a provision on text messaging.
Driving while texting
According to the U.S. Department of Transportation, approximately 16% of fatal automobile crashes and 80% of all crashes in 2008 were caused by distracted driving. While reading and composing text messages while driving is only one of numerous factors that can lead to distracted driving, such activity is a growing concern among safety and regulatory groups. In response to this concern, there have been various actions taken at the federal and state levels.
Both the Congress and the Executive have taken actions to mitigate distracted driving caused by texting while driving. Two bills, S. 1536 and H.R. 3535, have been introduced in Congress that would amend title 23 of the U.S. Code to reduce the amount of federal highway funding available to states that do not enact laws prohibiting texting while driving. Both are called the "Avoiding Life-Endagering and Reckless Texting by Drivers Act of 2009" or "ALERT Drivers Act." S. 1536 was introduced by Senator Charles Schumer on July 29, 2009, and referred to the Committee on Environment and Public Works; no further action has been taken. H.R. 3535 was introduced by Representative Carolyn McCarthy on September 9, 2009, and referred to the Committee on Transportation and Infrastructure Subcommittee on Highways and Transit; no further action has been taken.
The U.S. Department of Transportation held a Distracted Driving Summit on September 30 – October 1, 2009. Topics addressed included the definitions and data related to driver distractions and inattention; quantifying the risks of distracted driving; technologies available to mitigate distracted driving; legislation, regulation, and enforcement of distracted driving; and how to raise public awareness of the problem. In conjunction with the summit, on October 1, 2009, President Obama signed an executive order banning federal employees from text messaging when they are behind the wheel of government vehicles and from texting in their own cars if they use government-issued phones or are on official business.
Nineteen states and the District of Columbia have enacted a ban on texting while driving (some states have partial bans on young drivers using the cellphone in any capacity while driving). Additionally, 33 states debated 113 bills to curb driver distraction last year.
- See "How Americans Use Their Cell Phones," Pew Internet Project Data Memo (Apr. 2006).
- See "Use of Text Messaging in the US Grows by 67%," New Media Age (Dec. 6, 2007.
- See id.
- See "Congestion Causes Text Message Slowdown," Associated Press (Jan. 3, 2008).
- Jennifer LaFleur, "Dallas: City Must Provide Messages From Officials’ Personal Accounts," Dallas Morning News, Oct. 30, 2007.
- Detroit Free Press, Inc. v. City of Detroit, No. 08-100214 CZ, Wayne County Circuit Court, MI.
- On June 26, 2000, Mayor Kilpatrick signed a "Directive for the Use of the City of Detroit’s Electronic Communications System."
- A "public record" under the Michigan Freedom of Information Act is a "writing that is: (1) prepared; (2) owned; (3) used; (4) in the possession of, or (5) retained by a public body in the performance of an official function." MCL 15.232(e).
- For a chronology of developments, see "Reporters Committee for Freedom of the Press."
- Ledyard King, "Battle Over Public Information Expands," Federal Times, Mar. 24, 2008, at 14.
- N.Y. Pub. Off. L. §84 et seq. For a summary of the amendments to the Freedom of Information Law, see here
- A complete state-by-state listing is available on the National Council of State Legislatures website. See National Council of State Legislatures, "Cellular Phone Use While Driving Laws" (Oct. 2, 2009).