Can SMS be used as evidence?

As evidence, SMS is a common thing in litigation, so under what circumstances can SMS be used as evidence? Next, I sorted out some knowledge about whether SMS can be used as evidence. Welcome to read!

Can SMS be used as evidence?

It can be used as evidence, but it is more effective after notarization.

First, the evidence ability of mobile phone short messages

Short Message Service (SMS) is the abbreviation of SMS. Because of its short length, such messages are called short messages, short messages, short messages and short messages. From a legal point of view, the legal relationship in the process of sending and receiving short messages involves three parties, namely, the short message sender, the short message service provider (SP) and the short message receiver. In addition, Enhanced Short Message (EMS) and Multimedia Short Message (MMS) are both upgraded versions of SMS. They also use the control channel and store and forward messages through the SMS platform of SMS service providers, but their respective functions and transmission are more complicated than ordinary SMS. The short messages defined in this paper also include EMS and MMS.

To discuss the evidential ability of mobile phone short messages, we should first look at what evidential ability is. Evidence ability refers to the ability or qualification that a certain material can be used for strict proof, that is, the ability or qualification that can be allowed to be investigated as evidence and adopted. As to what standard a material should meet in order to have evidential ability, it is generally said in China's academic and practical circles that it should be objective, relevant and legal at the same time. So, does SMS have this "three characteristics" requirement? The following analysis one by one:

1. objectivity The objectivity of evidence means that the evidence itself must be objective and true, not fictional, imaginary or fabricated. Objectivity includes two aspects: first, the content of evidence is objective, that is to say, the content of evidence must be a reflection of objective things. Even if this kind of reflection may be biased or even wrong, it must be based on objective facts. Secondly, the form of evidence is objective, that is, the evidence itself has the form of existence, which is an objective thing and can be perceived by others. Pen pals think that SMS meets these two requirements. Although the transmission process of mobile phone short message is the sending and receiving of digital signals, it can finally appear on the receiver's mobile phone in the form of recognizable words, sounds and images, and its formal objectivity is beyond doubt. The content of a mobile phone short message that can prove the facts of the case obviously exists objectively. Although these contents are not "real" and can be easily deleted or changed without leaving any trace, this does not deny the objectivity of mobile phone short messages. The author believes that although it is easy to delete and modify mobile phone short messages as evidence, we can gradually overcome the defects by developing new technologies, rather than holding a completely negative attitude towards this, not to mention the existing data repair technologies can completely do this. In addition, SMS can not only be reflected in the inbox of the receiver's mobile phone, but also the SMS platform of the SMS service provider will automatically record the record of sending SMS, which can clearly reflect the specific time of sending SMS and the mobile phone numbers of both parties.

2. Relevance. The relevance of evidence means that a piece of evidence must have a substantial connection with the facts of the case to be proved in order to have a certain proof effect on the facts of the case. Only those facts or materials related to the disputed facts of the case can be called litigation evidence. Before using SMS as litigation evidence of a specific case, it is necessary to find out whether the facts and behaviors reflected by SMS are related to the facts of the case, and only those facts related to the case or logically related facts can be considered as evidence. For mobile phone short messages, the sending and receiving of short messages is passive by the message receiver and active by the message sender, and the communication behavior of sending and receiving short messages is corresponding. Each mobile phone number corresponds to a unique user, and the sending and receiving of mobile phone short messages can only be carried out between two specific mobile phone users. This correspondence can be proved by the service agreement signed between the short message service provider and the user. In the absence of other evidence to the contrary, the sending and receiving of short messages between two specific mobile phone numbers can be regarded as the communication behavior of two specific users at a specific time. As long as the party providing evidence can prove that the content of the short message is relevant to the case and sent from the other party's mobile phone number, it can be said to be relevant.

3. legitimacy. The legitimacy of evidence means that only the evidence materials that exist in a legal form and are obtained by the legal subject have the ability of evidence. In practice, legitimacy is manifested in three aspects: first, evidence must have a legal form; Second, evidence must be collected and extracted by legal personnel in accordance with legal procedures; Third, the content of evidence must be legal.

(1) The evidence form of SMS is legal. As far as litigation activities are concerned, the author believes that there is a legal basis for submitting mobile phone short messages as evidence to the court. First of all, Article 2 (a) of the UNCITRAL Model Law on Electronic Commerce stipulates that "data message" refers to information generated, stored or transmitted by electronic means, optical means or similar means, including but not limited to electronic data interchange (EDI), e-mail, telegram, telex or fax; Paragraph 2 of Article 2 of the Electronic Signature Law of People's Republic of China (PRC) (hereinafter referred to as the Electronic Signature Law) stipulates: "The data message mentioned in this Law refers to information generated, sent, received or stored by electronic, optical, magnetic or similar means." According to the provisions of two legal provisions, the concept of data message should contain two meanings: 1 data message uses electronic, optical, magnetic or other means with similar functions; The essence of data message is various forms of information. Mobile phone short message is a text, sound or image with mobile phone as the information dissemination terminal and carrier. Its essence is a kind of data information flow, which belongs to the category of data message. On the one hand, the content of short messages can be displayed in a tangible way through the mobile phone screen; on the other hand, it can be investigated and accessed at any time by downloading or uploading mobile phone information, so as to identify the sender and receiver of short messages and the sending and receiving time. Accordingly, the author thinks that mobile phone short message conforms to the relevant requirements of data message in Electronic Signature Law, and the characteristics of short message operation process determine that it can become a kind of data message. Secondly, according to Article 5 of the Model Law on Electronic Commerce, "the legal recognition of data messages should not deny their legal effect, validity or enforceability just because some information exists in the form of data messages"; Article 7 of the Electronic Signature Law also stipulates that "a data message shall not be refused to be used as evidence just because it was generated, sent, received or stored by electronic, optical, magnetic or similar means". Therefore, mobile phone short messages have sufficient reasons to become evidence of the facts of the case.

(2) Legalization of SMS collection procedures. Article 43 of the Criminal Procedure Law stipulates: "Judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of crimes in accordance with legal procedures. It is strictly forbidden to extort confessions by torture and collect evidence by threats, seduction, deception or other illegal methods. " Article 68 of "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" stipulates: "Evidence obtained by infringing upon the legitimate rights and interests of others or violating the prohibitive provisions of the law cannot be used as the basis for determining the facts of a case." The legal provisions can be understood as follows: forensics personnel shall not illegally obtain mobile phones or obtain short message records by illegal search, seizure or without the consent of the mobile phone holder; Don't illegally invade other people's mobile phone systems to obtain evidence; SMS evidence shall be collected and provided by legal personnel, and those who have no legal status may apply to the public security and judicial organs for collection or inform the parties to collect it; If the evidence is provided by a third party, the third party shall issue a document or digital signature to ensure that the evidence has been in the original state since it was generated or received, and to ensure that I voluntarily provide the evidence; When requesting a certain evidence from a SMS service provider, you should strictly abide by the confidentiality agreement and service terms signed with the customer, and you should not disclose the user's personal information at will, and you should not arbitrarily steal other people's private data and confidential information in the name of litigation needs. All mobile phone short messages obtained by illegal means shall not be used as the basis for finalizing the case and shall be excluded. Those who collect by illegal means need to be investigated for criminal responsibility, and the relevant personnel shall be investigated for criminal responsibility according to law.

In addition, the author thinks that there are several ways to collect short messages as evidence: 1 The collection subject and electronic information equipment (including mobile phones, computers, etc.) collect short message evidence together. ) or electronic information media (such as mobile phone cards, hard disks, etc. ) store SMS evidence. 2. The collecting subject forwards it to a special mobile phone and stores it in the mobile phone, and records the sender, receiver, sending time, SMS service center number and other related information of the original mobile phone short message with recorded data to collect the specific mobile phone short message. 3. The collecting subject stores the mobile phone short messages in a specific computer with the help of some mobile phone software, and records the information related to the generation and sending of the mobile phone short messages that are not stored in the computer with recorded data, so as to collect the mobile phone short messages. 4. The collecting subject uses other corresponding technologies that can copy specific electronic information to collect evidence of mobile phone short messages.

(3) The content and legality of the short message are taken as evidence. One party disagrees with the content and sender of the short message, and it is very difficult to identify the content and content of the short message as evidence. At this time, we need the help of SMS service providers. Generally speaking, SMS service providers are mainly needed as a third party to prove the ownership of SMS. Article 7 of the Telecommunications Regulations stipulates that "the telecommunications market shall adopt access permission". Therefore, only SMS service providers have some necessary technologies according to law, so only they can legally obtain and save customer information. However, China's laws, including the Telecommunications Regulations, do not stipulate that SMS service providers have the obligation to provide relevant information to third parties other than telecommunications service contracts, which makes it difficult to ask SMS service providers for information. The author thinks that the behavior of SMS service providers should be regulated in the form of judicial interpretation or administrative regulations as soon as possible, so that they have the obligation to provide evidence when necessary.

Second, the probative power of mobile phone short messages.

The probative force of evidence, also known as the value of evidence, refers to the strength of evidence in ascertaining facts, that is, the influence of evidence on fact judgment, including the credibility and narrow probative force of evidence. The former refers to whether the evidence itself is credible in terms of the relationship between the evidence and the facts to be proved; The latter refers to whether the evidence can prove the facts to be proved and to what extent. In other words, the probative force of evidence mainly involves the evaluation of the reliability and probative efficiency of evidence itself. The evaluation here is obviously the evaluation made by the judge in the evidence investigation procedure.

(A) the probative force rules of mobile phone short message evidence

Article 77 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings stipulates that the people's court may determine the probative force of several evidences to the same fact according to the following principles: (1) The probative force of official documents produced by state organs and social organizations ex officio is generally greater than other documentary evidence; (2) Physical evidence, archives, expert conclusions, transcripts of inspection or notarized and registered documentary evidence are generally more probative than other documentary evidence, audio-visual materials and witness testimony; (3) The probative force of the original evidence is generally greater than that of the obtained evidence; (4) The probative power of direct evidence is generally greater than that of indirect evidence; (five) the testimony provided by a witness is beneficial to the parties who have relatives or other close relations with him, and its probative force is generally less than that of other witnesses. Based on the evidence of SMS, the author understands the provisions of this law as follows:

Case 1: When it is necessary to compare the probative force of SMS with other evidence, the rules of probative force are as follows:

1. SMS evidence is easy to be deleted and modified, leaving no trace, which determines that it is difficult to save and prove its existence as evidence, so it is particularly important to save and fix it. According to the relevant provisions of the Civil Procedure Law, in order to prevent the evidence of SMS from being destroyed or difficult to obtain in the future, the parties may apply to the notary office for notarization and preservation before prosecution, or apply to the people's court for preservation when prosecution; When hearing a case, the people's court considers it necessary to take evidence preservation, and may also take the initiative to take evidence preservation ex officio; When the public security organ discovers illegal mobile phone short messages, it can also seize and preserve the mobile phone; Short message service providers should also report illegal short messages to public security organs in their daily work and take measures to preserve them.

2. The probative power of direct evidence is generally greater than that of indirect evidence. Some people think that electronic evidence is easy to be forged and tampered with, leaving no trace after forgery and tampering, and it is easy to make mistakes due to human reasons or environmental and technical conditions, so it should be classified as indirect evidence. The author believes that this is a misunderstanding of the legal nature of electronic evidence. The classification of direct evidence and indirect evidence is based on whether the main facts of the case can be directly proved. Electronic evidence is a mixture of electronic material evidence, e-book evidence and electronic audio-visual materials. It can appear as direct evidence or indirect evidence in different situations. We should not deny its function of directly proving the authenticity of a case because of its destructiveness. The author thinks that electronic evidence can be used as direct evidence, but it is not excluded as indirect evidence, which is determined by the multiple attributes of electronic evidence. Therefore, as one of the forms of electronic evidence, SMS evidence may naturally become direct evidence.

Case 2: When comparing the probative force of different SMS evidences, the rules of probative force mainly include:

1. The probative power of notarized SMS evidence is generally greater than that of notarized SMS evidence. Based on the special nature and neutral position of the notary office, China's laws recognize the authenticity of the evidence obtained by notarization, and unless there is evidence to the contrary, it cannot be overturned. The pre-judgment effect of notarization certainly applies to mobile phone short message evidence. Therefore, the probative power of notarized SMS evidence is generally greater than that of notarized SMS evidence. In addition, the existing scholars put forward the concept of "CNA", which must rely on advanced network computer technology, and the notary office can directly transmit the data content of mobile phone short messages from the short message platform of the short message service provider to the notary office. The mobile phone short messages obtained directly in this way increase the credibility of authenticity. The author believes that this technology has an optimistic prospect, so it is also a good way to preserve the evidence of mobile phone short messages, and it also greatly improves the probative power of mobile phone short messages.

2. The probative power of SMS evidence supported by other evidence is generally greater than that of single SMS evidence. If one party only has SMS evidence to prove his claim, and the other party has other evidence to prove his claim, then the judge will be more inclined to believe the claim of the other party with both SMS evidence and other evidence. It can be seen that the probative power of SMS evidence supplemented by other evidence is generally greater than that of a single SMS evidence.

3. The probative power of the original SMS evidence is generally greater than that of the incoming SMS evidence that cannot be checked with its original evidence, but it is equivalent to that of the incoming SMS evidence that has been checked with its original evidence. The original short message evidence should refer to the short message evidence that has been saved in the initial state and stored in the electronic information media of specific electronic information equipment (such as mobile phones, computers, etc.). ) The initial transmission, transmission or reception depends on this. Mobile phone short message evidence should refer to the mobile phone short message evidence generated by copying the original mobile phone short message evidence through the corresponding technology that can copy specific electronic information. As for how to distinguish whether the evidence of mobile phone short messages is original evidence or incoming evidence, the author thinks that the purpose of distinguishing can be achieved by looking at the relevant information such as generation, transmission and storage in the electronic information equipment that stores or displays the short messages.

4. The probative power of direct SMS evidence is generally greater than that of indirect SMS evidence. Any mobile phone short message evidence that can directly prove the main facts of the case alone can be called mobile phone short message direct evidence. The mobile phone short message evidence that can not directly prove the main facts of the case alone, but must be combined with other evidence to form an evidence chain to prove the main facts of the case is indirect mobile phone short message evidence.

5. The probative force of the evidence of mobile phone short message retained by the unfavorable party is greater than that of the neutral third party, while the probative force of the evidence of mobile phone short message retained by the favorable party is less than that of the neutral third party. Before filing a lawsuit, the evidence of SMS can be stored in the client's own mobile phone, or it can be stored on the SMS platform by a neutral third party, such as SMS service provider. Because of their different identities, these subjects have different interests in the case, which leads to their different handling of evidence. It is reasonable to say that the parties often hide the evidence against them. Therefore, whenever the evidence of a mobile phone short message is submitted by an unfavorable party, it is more reliable and can even directly infer its authenticity. However, due to its neutrality and independence, the information provided by SMS evidence kept by third parties is generally more objective, fair and reliable.

The rules in the above two cases are just some superficial understandings of the author, some of which are introduced by existing legal provisions, and some are similar to the precedents formed in judicial practice. The author believes that too much stipulation of the probative force of evidence and a simple and mechanical "one size fits all" attitude towards complex judicial practice will stifle the conscience and rationality of judges and is not conducive to the discovery of the truth of the case. Especially for electronic evidence represented by short messages, new information technology will refresh the existing situation every day. Therefore, on the issue of the probative force rules of mobile phone short messages, the author thinks that legislation only needs to be guided in some general directions, and the rest is left to the judge to make discretion according to the actual situation and handling experience. In fact, the principle of free evaluation of evidence has been generally established in all countries in the world. China's criminal procedure system should also establish the principle of "free evaluation of evidence". In 2002, Article 64 of the Supreme People's Court's "Several Provisions on Evidence in Civil Litigation" stipulates: "A judge should comprehensively and objectively examine the evidence in accordance with legal procedures, follow the professional ethics of judges in accordance with legal provisions, use logical reasoning and daily life experience, independently judge whether the evidence is probative, and publicly judge the reasons and results." This article can be regarded as giving judges the freedom of rational judgment and the power of independent judgment, indicating that the system of free evaluation of evidence has a legal status in civil proceedings.

(2) Confirmation of the probative power of mobile phone short messages.

1. Identify the probative force of SMS evidence through identification. Text messages are inherently perishable. Short messages are easy to lose evidence because of improper operation by mobile phone holders or malicious deletion by interested parties; The loss of mobile phone and SIM card, or the content of SMS may be maliciously changed by interested parties, will also cause the loss of SMS evidence. At the same time, there are some technical insecurities in SMS: the transmission process of SMS determines the risk of data being changed when the SMS data stream is stored on the platform of mobile phone service providers. In the above circumstances, it involves the judicial appraisal of mobile phone short messages. When it comes to forensic identification, we have to mention data repair technology. Because mobile phone holders often destroy the media recording data or directly delete the data related to the facts of the case, in order to restore the authenticity of the data, it is necessary to use data repair technology to repair the damaged media or data. At present, the Electronic Data Repair Center of the National Information Center officially obtained the qualification of electronic data judicial authentication issued by the Beijing Municipal Bureau of Justice, and established the Electronic Data Judicial Authentication Center of the National Information Center. Relying on its own advantages and rich experience in data recovery technology, the certification center not only ensures the integrity of electronic evidence, but also improves the reliability and authenticity of electronic evidence, providing authentic, reliable and objective electronic data certification results for judicial organs. Through the judicial expertise report of the National Information Center, the judicial organs can comprehensively and profoundly understand the electronic evidence related to the case and the size and degree of the probative force of the electronic evidence, thus providing an effective basis for the judicial organs to judge the facts. From the perspective of legal practice, forensic evidence is a key link in the process of obtaining evidence, and the final appraisal result can be used as the basis for judicial organs to determine the facts.

2. Presumption confirms the probative force of SMS evidence. According to the type of mobile phone mastered by the author, some mobile phones have the function of re-editing and modifying mobile phone short messages without leaving any "clues". The receiver can completely modify the received SMS in a mobile phone that can be modified without leaving traces, and then load it into a mobile phone without this function as a defense against the possibility of SMS modification. This makes it difficult to identify the authenticity of its short messages. In this way, it is very unrealistic for the court to blindly emphasize that mobile phone short messages have not been tampered with, so the authenticity identification of such electronic evidence can only be the second best. From the advanced experience of foreign countries, the usual practice is not through direct means-judicial expertise, but through indirect means-presumption, admission and conclusion. These indirect identification methods are the so-called alternative measures and systems. Among them, the presumption method is the most widely used, so it is also regarded as the first rule to adopt electronic evidence.

Presumption is a method for judges to infer the existence of another fact that needs to be proved in related litigation based on the needs of duties and certain empirical rules. Judge's determination of facts is a process of logical thinking and reasoning. The use of fact presumption to determine the facts of a case conforms to the proof requirement of facts to be proved in civil trials-high probability. "Probability" means both possibility and necessity. The judge infers the facts of the case by examining, judging and analyzing the evidence, which will be restricted by subjective and objective factors. It is often unrealistic and unnecessary to reproduce the objective truth of a case. Article 63 of the Provisions on Evidence in Civil Procedure stipulates that a judge shall make a judgment according to law if he finds that the facts of a case are proved by evidence, not objective facts. Therefore, as long as we reach a high degree of probability and a considerable degree of inner conviction from the perspective of judge's discretion, we can think that the fact is true, that is, legal fact.

3. Combine other evidences to comprehensively judge the probative force of mobile phone short messages. Because the evidence of SMS is mostly indirect evidence, which is indirectly related to the main facts of the case, it can only support individual plots or fragments related to the case and cannot directly prove the main facts of the case. However, it is also very important to link some indirect evidence and find out the main facts of the case through comprehensive analysis and reasoning. Therefore, it is necessary to combine other evidence of the whole case to comprehensively judge its evidence effectiveness. The specific investigation includes: whether the evidence collection link is complete, whether the evidence form is flawed, whether it contradicts other evidence, and so on.