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Will law ban messages from mayor's trial?—A Commentary by Susan Crawford ’89

The following commentary was published in The Detroit News on April 8, 2008.

Will law ban messages from mayor's trial?
By Susan Crawford ’89

Text messages are the most intimate of communications. People can sense the shape of their mobile device in a bag full of other objects and can pick out its ring as if it were the voice of a well-loved child; the texts received on that device can seem like whispers, and their quick, casual tone can confirm in an instant a heart's desire.

So it is not surprising that the extent of Detroit Mayor Kwame Kilpatrick's romantic relationship with his former chief of staff could be revealed by the allegedly more than 14,000 text messages the two exchanged several years ago. Because both claimed under oath that there was no such relationship, the content of Christine Beatty's messages is being sought by this and other newspapers in a civil lawsuit. The messages are also relevant to a criminal action by Wayne County Prosecutor Kym Worthy against Kilpatrick and Beatty focusing on their alleged perjury, among other felony counts.

Wayne County Judge Robert Colombo is trying to decide whether those messages can appropriately be released without the consent of Beatty. It's clear that the text messages are central to the mayor's story and are the appropriate subject of enormous public interest.

Although the messages will undoubtedly come out in time, the legal questions about their availability need to be resolved swiftly so the public can know what on earth their mayor was up to. The judge can and should act to compel their disclosure.

We have in this country a somewhat confusing federal statute, the Stored Communications Act, that governs these intimate text messages. The messages back and forth by Beatty and Kilpatrick have been stored by SkyTel, so some scholars will say those messages should be protected under the statute's provisions that relate to "remote computing services." Kilpatrick's private attorney, Dan Webb, certainly argues they are not admissible in the criminal case.

Under the federal law, the city's provider, SkyTel, is not allowed to produce the content of these messages on its own unless the originator or the subscriber consents. Here, if the subscriber is the city of Detroit, Detroit can consent, releasing SkyTel from any obligation to protect these messages. Or, if the judge prefers, he can use discovery procedures to compel Detroit to allow production of the texts. This should solve the newspapers' problem in the civil case. In the criminal case, a subpoena can compel the release of the messages.

At the end of the day, these texts will be revealed, despite all the efforts of the mayor's lawyers to shield them from public scrutiny. They will reveal everything; reading these messages will be like hearing these two people breathing, and this will be unbearably embarrassing for the mayor.

But these messages are not sought for frivolous reasons. Their content is central to the truth of the mayor's operation of his public office, and they must come out.

Susan Crawford, a visiting professor at Yale University who specializes in intellectual property law, becomes a professor of law at the University of Michigan in the fall.