Thursday, July 3, 2008

Text Messages as Electronic Documents

A sort of e-store/web page advertisement hybrid has emerged from social network sites.  Multiply, for example, has a number of online sellers whose product range from laptop sleeves to custom-made swimsuits.  They are akin to e-stores as the page displays the range of products for sale and the seller does not keep a physical store where buyers can check out the goods.  They may also be considered as mere informative and persuasive ads as the buyer cannot directly purchase the goods online through the website.  The offer to buy and the subsequent acceptance of the offer are made trough email or through SMS which is the more common and preferable mode because of the faster response and 24/7 connectivity.  Like marriage (or not), this kind of relationship is based on trust.  The seller trusts the buyer to send payment as soon as he has prepared the goods for shipping and the seller trusts the buyer to ship the goods as soon as he has arranged payment. However, unlike marriage, the parties are putting their trust on strangers.  Moreover, they are basing their whole transaction on a technology which, as cheating spouses would know, is easy to delete, easy to deny and easy to dispense with.  This mode of transacting is fast, easy and cheap but it is also risky and could easily be a tool for unscrupulous sellers and prank buyers.

The Supreme Court has issued a Resolution outlining rules on electronic evidence (A.M. No. 01-7-01-SC).  The Resolution includes, among others, the admissibility of ephemeral electronic communication as evidence in civil actions and proceedings, administrative and quasi-judicial proceedings.   Under Sec. 1(k), Rule 2 of the Resolution, ephemeral electronic communication is defined as:

k. “Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.

The inclusion of text messages as admissible evidence probably affords some measure of protection to parties transacting through SMS communication.  However, admissibility is just the beginning.  Even when a text message is recorded and stored and is proven authentic, there is still the matter of connecting the mobile phone number with the alleged sender.  Prepaid SIM cards in the Philippines cannot be personally identified with their owners, unless they had some previous issue with their mobile network, then the mobile network could have some sort of information on the SIM owner but even that can be faked.  The party against whom the evidence is presented against could easily deny ownership of the mobile phone number.  And what if the message wasn’t stored?  The rules say that its existence can be proven through testimonial and other competent evidence (Sec. 2, Rule 10).  It is easy to fabricate when the technology relied upon is virtually untraceable.  Recourse to the Network Provider’s logs can be made but it is not established whether all telecommunications network keep a log of text messages sent or received by their subscribers and even if they do they usually only store them for a few days and then they eventually get deleted.  Issues abound as to how a party may actually go about proving the existence of an agreement made through text messaging.

Individual transactions concluded through text messages are probably not monetarily considerable but there are a number of e-sellers and e-consumers relying on them everyday.  The law should afford protection to these types of transactions.  Admitting text messages as evidence in a civil action for performance, recovery or damages is one way.  However, the legislature should probably look into protective measures that are pre-transaction to discourage fraud.  For example, SIM cards could be registered or associated with a government issued identification to assure accountability.  If this does not seem practical then network companies should be encouraged or even mandated to classify SIM cards for personal or business use.  A more accountable, secure and detailed system could be set up for business SIMs.  This would at least assure buyers that a third party has information on the seller they are transacting with.  Government intervention is probably introducing bureaucracy to a trade system that is currently easy to set up.  But who said security was cheap?

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