By LAURA M. HOLSON

THERE IS A question that has crossed the mind recently of anyone who has sent a cellphone text message while cheating on a spouse: What was I thinking?

Text messages are the new lipstick on the collar, the mislaid credit card bill. Instantaneous and seemingly casual, they can be confirmation of a clandestine affair, a record of the notso- discreet who sometimes forget that everything digital leaves a footprint.

This became painfully obvious this month when a woman who claims to have had an affair with Tiger Woods told a celebrity publication that he had sent her flirty text messages, some of which were published. He follows other politicians who showed a lack of understanding about texts, including Kwame Kilpatrick, a former Detroit mayor who went to prison after his steamy text messages to an aide were revealed, and Republican Senator John Ensign of Nevada, whose affair with a former employee was confirmed by an incriminating text message.

Unlike earlier eras when a dalliance might be suspected but not confirmed, nowadays text messages provide proof. Divorce lawyers say they have seen an increase in cases in the past year where a wronged spouse has offered text messages to show that a partner has strayed.


An intimate text
message today, legal
evidence tomorrow.


The American Bar Association began offering seminars this fall for marital attorneys on how to use electronic evidence - text messages, browsing history and social networks - in proving a case. And the United States Supreme Court agreed on December 15 to decide whether a police department in Ontario, California, violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager.

“How does someone make up an excuse when what is happening is right there, written in black and white?’’ asked Mitchell Karpf, a Miami divorce lawyer who is also chairman of the bar association’s family law section. “By the time someone shows up with a handful of texts, there is no going back.’’


Like others before him, Tiger Woods has found that the digital trail left by text messages can be incriminating. / HANS DERYK/REUTERS; TOP, TONY CENICOLA/THE NEW YORK TIMES


Although most e-mail users have come to understand that messages remain on their computers even if deleted, text messages are often regarded as more ephemeral - type, hit “send’’ and off it goes into the ether. But messages can remain on the sender’s and receiver’s phones, and even if they are deleted, communica tions companies store them for anywhere from days to a few weeks.


In the Era of Texting, Betrayal
Leaves a Fateful Digital Trail


Lawyers expect the number of cases to grow as younger cellphone users, who are more likely to text than talk, marry. At the root of the issue is privacy - or rather the increasing lack of it in our show-and-tell digital culture. Text messages are considered private, much as telephone calls are, legal experts say. But if a cheating spouse’s cellphone is part of a family calling plan or regularly left unlocked , it is conceivable that a suspicious partner could make a case for sifting through the in-box.

“People who have something really private to say probably shouldn’t do it in a text on their cellphone,’’ said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a research group based in Washington.

In Mr. Woods’s case, Jaimee Grubbs, who has worked as a cocktail waitress in Las Vegas, came forward with text and voice messages that she said were from him. The texts surfaced after he crashed his car on November 26; a steady stream of reports about marital infidelities have followed. Since then, more than a dozen other women have said they have slept with Mr. Woods.

Mr. Woods announced on December 11 that he would take an “indefinite break’’ from the PGA Tour to work on his marriage. The global consulting giant Accenture ended its endorsement contract with him on December 13, a day after Gillette announced it would reduce his presence in its advertising.

Others, like Kwame Kilpatrick, the former mayor of Detroit, were found out because they used governmentissued mobile phones and pagers. Mr. Kilpatrick lied under oath about having an affair with an aide, but his text messages revealed the truth. Nevada’s governor, Jim Gibbons, was accused last spring by his wife in divorce documents of sending more than 800 text messages to a mistress in 2007. He contended that the woman was a friend, but he paid the state $130 for the messages from his phone.

What is more common, though, is suspicion followed up by a confrontation. Doug Hampton, a longtime friend and employee of Senator Ensign’s, said recently on the television news show “Nightline,” that he was alarmed after he had borrowed Mr. Ensign’s cellphone in late 2007 to call his wife, Cynthia Hampton, and found her listed as “Aunt Judy.” Mr. Hampton said he found an incriminating text message and confronted the pair about their affair at a Christmas dinner soon after.

In a recent survey of 2,300 adults about social networking, the Pew Internet and American Life Project found that 12 percent said they had shared information online that they later regretted posting. Lee Rainie, director of the Pew project, contends it is evidence of an overall cultural shift in which people have become increasingly careless about revealing personal information .

“It is one thing to write a personal note to someone who shares it with her two best friends,’’ said Mr. Rainie. “It is another thing to text your undying affection and become a laughingstock. What feels intimate and anonymous at the time, perhaps, really isn’t. It can be shared widely.’’

Robert Stephan Cohen, the lawyer who represented the former supermodel Christie Brinkley in her divorce from Peter Cook, said even routine divorces would become uglier with more text messages as evidence.

“It’s much different than rumor running around about a husband at dinner with a babe in the back booth,’’ he said. “It’s in the spouse’s face. They read it over and over again. It’s harsh and hurtful.’’

Kwame Kilpatrick, the former Detroit mayor, reacted in court in 2008 . Sexually explicit texts were evidence in his perjury case. / BILL PUGLIANO/GETTY IMAGES