Privacy Lessons From the Karen Read Texts

I have been following the Karen Read murder trial, and it has been quite an ordeal. It featured some of the worst expert testimony I have ever seen, a medical examiner who declined to rule the death a homicide, poor investigative technique, and a couple of genuine "gotcha" moments. Underneath it all is a privacy lesson that applies to anyone who carries a phone.

After the mistrial, Massachusetts State Police Trooper Michael Proctor was transferred out of his role as a detective with the Norfolk County District Attorney's State Police Detective Unit and relieved of duty over his handling of the investigation into Officer John O'Keefe's death.¹ The most memorable parts of his testimony centered on text messages he sent over several months to friends, family, and colleagues. They were horrible and deeply misogynistic. He sent all of them from his personal phone.

Your phone backups aren't as private as you think

Forensically imaging a phone recovers a remarkable amount of data, including deleted messages.² Forensic examination isn't the only exposure, though. Backups let us move apps and messages to a new phone when we upgrade or lose one, and most people pay them very little attention because they assume a cloud backup is private. However private you think your device messages are, relevant backups are often reachable by subpoena.

In the Read case, the text messages that suggested bias on the part of lead investigator Proctor came from his iCloud backups.³ When he sent them, he never imagined anyone outside the conversation would see them, much less that he would read them aloud to a jury.

The practical lesson applies to everyone, but especially to professionals and people in positions of authority. Anything you send electronically can become evidence. An investigator sharing case "news" with friends or family is almost always breaching some duty, whether a legal one or a confidentiality obligation in an employer's policy. If you wouldn't want a message read aloud in court, don't send it. Encrypting your backups and reviewing what you back up is worth doing. It protects against unauthorized access, but it won't make the data immune to legal process.

Mixing personal and professional communication multiplies the exposure

Trooper Proctor used the same phone to message his wife and friends as he used to message colleagues. By not separating his professional and personal communication, he made it far more likely that the case would pull in his personal messages and scrutinize them.

Where your employer allows it, opt out of bring-your-own-device programs and use a company device for work. That keeps a clear line between personal and professional data. It matters most for senior employees, because the likelihood of being involved in an investigation rises with seniority, though it never falls to zero for anyone. Employees who do use personal devices for work should understand that the personal messages and data on those devices can be scrutinized in a legal investigation and may be swept into a preservation request or order.

The Karen Read case is a cautionary tale for anyone who thinks a text message stays between the people in the thread. Your digital footprint is bigger than you think, and the device you use for work decides how much of it a court can reach.