BROOKE GLADSTONE: Telephone text messaging has finally caught on in America, lagging far behind Europe and Asia where it's been used to investigate and even solve murders. Now America has its first high-profile criminal case that may well hinge on text messaging -- the trial of NBA star Kobe Bryant. It seems that a year ago, just hours after having sex with Bryant, the woman who has accused him of rape exchanged text messages with an ex-boyfriend and another person, still unidentified. Those messages could be, in the words of the judge, "highly relevant in determining whether the sex was consensual or not," so the judge wants the cell phone company to produce the messages, and they can do it. Text messages, like emails, are stored on servers long after we press delete. Barry Steinhardt is the director of the Technology and Liberty Project at the American Civil Liberties Union. Barry, welcome back to the show.

BARRY STEINHARDT: Thank you.

BROOKE GLADSTONE: So where does the law in the United States stand on retaining data for law enforcement purposes?

BARRY STEINHARDT: There is no law in the United States that requires the telephone companies or communications providers retain data. We're, of course, concerned about companies that are turning over data that they are retaining, whether it's email messages or text messages, without a court order, without giving the person who's the subject of those messages an opportunity to object.

BROOKE GLADSTONE: In Kobe's case, the company was AT&T Wireless, and I guess last month the state district judge in the case ordered that the messages be turned over to him for private review to determine whether or not they were relevant. This strikes you as improper or out of order?

BARRY STEINHARDT: Well, I think in a criminal case, if a company has evidence, it's appropriate for a judge to review it. Really, the question with these -this sort of thing has been whether or not the government is going to force companies to retain data long beyond when they would retain it for business purposes in order to facilitate investigations down the line. There's been a major battle about that worldwide. Here in the United States so far, we have avoided those requirements, but they may yet be coming.

BROOKE GLADSTONE: In this case, it could very well exonerate Kobe Bryant if he is innocent. In other cases, in Europe, it's actually helped track criminals down. Is it such a bad thing to hold on to this material?

BARRY STEINHARDT: Well, you need to think about this from two perspectives. One, of course, is it's enormously expensive to the companies to hold on to this data, so you really are requiring them to rebuild at great expense. Secondly we have to ask what kind of society we want to live in. Do we want to live in a society where our every communication, our every utterance, is tracked and correlated. After all, remember that a lot of the data that's being held on to may seem innocuous, but it may, for example, allow you to be physically tracked. That's what a cell phone call can do now. And we know that the government -- particularly the federal government -- has been abusing its ability to get access to this kind of data. That's likely to worsen if we simply increase the power that they have to surveil the data.

BROOKE GLADSTONE: When you talk about abuse, are you talking about the loosening up of restrictions under the Patriot Act?

BARRY STEINHARDT: The Patriot Act and similar kinds of legislation that have allowed them to go into service providers, whether they're electronic mail providers or telephone companies, and to get access to communications data without really any significant judicial oversight, without any notice of the party. And unfortunately we're in a situation now where we have the worst of both worlds. We have both intrusive government and secret government. So we're not sure of the full parameters of what's happened here, but we do know that they've used these new powers quite extensively.

BROOKE GLADSTONE: Barry, we do have something called The Electronic Communications Privacy Act.

BARRY STEINHARDT: Yes, we do.

BROOKE GLADSTONE: Doesn't that offer some protection?

BARRY STEINHARDT: Not as much as one might think, particularly because it treats different kinds of communications in different ways, so for example, a voice telephone call in real time has greater protection under our laws than does stored email, when really in the modern world there is no great distinction. We now all are used to communicating through these other medium, but the law, unfortunately, treats them differently -- gives greater protection to some than to others.

BROOKE GLADSTONE: I'm wondering what the impact of the Kobe Bryant case might be. We know that in Medford, Oregon, a man convicted of killing his wife had sent some email messages and text messages that were meant to terrorize her, and they played a role in his case. The AP is calling the Kobe Bryant example the first high-profile U.S. criminal case in which text messages could be entered into the docket.

BARRY STEINHARDT: Well, maybe it will be. What I'm concerned about is the possibility that we'll begin to get calls now to require companies like AT&T Wireless to retain data for long periods of time under circumstances where the government in particular can get easy access to it, based on nothing more than a hint of suspicion. The question is: how much process is going to be involved here? Are we going to have, as we apparently are in this case, a judge who will review the data? There'll be an opportunity to contest the handover of the data. You'll have due process -- an ability to protect your interests and your rights. Unfortunately, the way the law is going in the United States, increasingly there is no ability to protect your rights. The government simply has to make an assertion that it's somehow relevant to a crime or to a matter of national security, and they can get access to that data without your knowing it, without your having any ability to, to contest the handover.

BROOKE GLADSTONE: Okay. Barry, thank you very much.

BARRY STEINHARDT: Okay. Sure thing.

BROOKE GLADSTONE: Barry Steinhardt is the director of the Technology and Liberty Project at the ACLU. [MUSIC]