“Gone”: The Surprising Persistence of the Things We Share Online

By Nick Blevins

Photography by William Ziller

(Content warning: This article contains mention of sensitive topics like child abuse and sexual assault; reader discretion advised.)

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In these increasingly digital times of ours, how many countless photos and texts have we shared with others? How many apps have we lined with the various moments of our lives, the mundane and the intimate? Likely enough to fill your phone’s storage once or twice over. 

Unlike stacks of photos or reams of letters, the seemingly ephemeral nature of these electronic communications allows for them to be deleted from our devices at will, and removing access to them, permanently erasing them, is generally understood to be a matter of a few taps or clicks. 

The reality, however, is that they’re never truly gone. For minors and adults alike, deleted messages, images, and videos can be recovered for use by law enforcement and in legal proceedings. One San Antonio attorney’s recent viral Instagram post underscored this point, eliciting surprise among the community. Scene in SA spoke with attorney Alfonso Cabañas about the information in his post, his thoughts on its reception, and his perspective on how our children can best navigate the precarious confluence of their personal and online lives.

Can you talk about the post for a moment? What drove you to make it then?

“I practice exclusively criminal defense. Recently we’ve been getting a lot of cases that involve [adult-with-adult conversations or adult-with-minor conversations]. In looking at discovery, we've been getting Snapchats, Instagrams, and text messaging through different apps. And so, we were surprised that all these text messages that people deleted on their phones, we were receiving them as evidence, as discovery.

The more we looked into it, the more we took continuing education courses and learned about it, we were like “Wow, so text messages really are available and they can be retrieved even though the user deletes them!”

So, my wife was in the office one day and she was, you know, listening to us talk at work and she was like, wait a minute. So these deleted messages can actually be retrieved from Instagram, from Snapchat? People don't know about this. And that's how she came up with the story of talking more about it, and teaching people: ‘Hey guys, be careful what you text and post, because we can really retrieve it, and we can take a look at it. Even after you believe that you deleted it, it's still there.’”

You have that expectation that when you delete something, it’s gone. That’s pretty shocking. Looking at the post, it has blown up [Almost 7 million plays and over 336 thousand shares at the time of this writing]. Have you been surprised by the reaction to it?

“I have been surprised. Because, you think, or you hear all these stories from friends, ‘oh yeah, once you delete it, it’s no longer there’. But I’m surprised again; that many followings, or views, or likes, because people didn’t really know or realize that, yeah man, people can access it.”

Have you had a lot of people reaching out to you?

“I have. We’ve had a lot of people reaching out to us as a result. I think everybody in the office has taken more continuing education courses based on that topic alone. In other words, everybody here, all three of us, know and have experience using Cellebrite (a controversial cell phone data extraction tool frequently used by law enforcement) as far as extracting text messages. So yeah, we’ve just been training with it because it's something that, again, we're getting questions and clients coming in and asking us, hey man, what about this? What about that? Or even in criminal cases: ‘Hey, I may have had this on my phone, can you help me?’ When we get discoveries from the state on criminal cases, we know what to look for. Now we know that if they claim, well, sorry Alfonso, these text messages have been deleted–”

–that means nothing.

“That means nothing, yeah. So now we’re teaching [clients] how to adequately request, or properly request, deleted videos, photos, messages; stuff that they didn’t even know could be done.”

Amazing. Well; always good to empower your clients. How common are you finding this issue to be, in general?

“You’d be surprised. Very common, because one of the things in criminal cases, whether it's adult with adult, whether they have a consenting relationship; One says, you know, it wasn't consensual. Text messages come up all the time. Posts. Videos. 

Also on high school relationships, right? We see them a lot where you have a senior who's dating a freshman. The senior may be 18 and the freshman may be 15. I mean, in Texas, if they have a sexual relationship, that's sexual assault of a minor. And these kids and their parents are not aware of it. So the text messages come in when we're trying to prove: Hey, wait a minute. This is a consensual relationship. This was not rape. 

So, all these things come about. Possession of child pornography, going back to high school cases, where the 15 year old girl or boy sends a picture of themself nude to their boyfriend or girlfriend. That is possession of child porn. Even though you delete it, we can still get it, it’s still accessible, law enforcement can still get it. So decisions are coming up a lot more now that parents are aware of it, and now that adults know, hey, wait a minute, maybe these deleted messages can help me, or they can save my life, or keep me out of jail.”

On that note, is there a particular law or change in prosecutorial prerogative behind the rise in these types of cases? What changed?

“You know, I don't know that there's been a change. I know that the state very heavily and seriously prosecutes, for example, the child sex cases. As a consequence, anybody who gets found guilty of that offense has to register as a sex offender, whether it's every 10 years or for life. 

So they are, you know, they're very seriously prosecuted, but [deleted messages] come up a lot in situations where you're trying to establish that there was an issue, whether it's consent, or alleging that it wasn't a rape, it was a consensual relationship; the text messages will show it. Because the text messages, for example, you’ll see: ‘oh yeah, come over to my house,’ or ‘let's do this. Let's do that.’ So it's reusing it, and defending our clients who have been wrongfully accused of sexual assault. And so that's where, at least on the defense side, having access to that information and knowing that it's never deleted helps us in proving our client’s innocence.”

That’s extremely valuable. For those curious, what type of legal consequences are we looking at for offenses like these?

“Very serious consequences. You can get prosecuted on the state side or on the federal side. For example, we're talking about sexual assaults, right? You can get up to 20 years in prison on a regular sexual assault. If you're dealing with minors, depending on the severity of the case, you can also get up to life incarceration. And, of course, a lifetime registration as a sex offender. The federal side comes about when you're sending for example, these explicit images across state lines. That's when the feds get involved.”

Does the severity of those consequences extend to minors as well?

“Yes and no. So the severity extends to minors in that they also go to juvenile court. They go to the juvenile detention center, they deal with juvenile prosecutors, and there’s a defense lawyer specialized in juvenile proceedings, so yeah, that extends to them as well.”

So then, I’d just like to parse it a little bit. How do the consequences differ between production and distribution? So like, students making it, versus sending it to other students?

“Let’s take a basic example. High school boyfriend and girlfriend. The girlfriend is 15, she's a freshman. The boyfriend's a senior, he's 18. That's an adult, right? If they engage, if they have sex? Then by state law, the boyfriend would be committing a sexual assault of a minor just because of the age. Now, there's defenses, there’s stuff, but by law, that's the charge.

Now, on the photos? If the girlfriend was a minor, and sends naked photos to her boyfriend, the boyfriend is now in possession of child pornography. If he distributes these photos, then he’s now distributing child pornography. So now the offense extends from the boyfriend possessing the photos; he distributes them, so now his buddies who have these photos can also be charged with possession of child porn just by receiving them, not even requesting them; Just by receiving these photos, they’re also charged with possession.”

Do you think that these laws, cases, and prosecutions have had their intended effect?

“Yeah, because the law was intended to protect children, right? From sexual predators and pedophiles. So that was the intent of the law. 

But there’ve been circumstances in which consenting teenagers end up getting in trouble because the boyfriend got mad, the girlfriend got upset, and so now they’re saying ‘my boyfriend raped me’. That’s where you get into trouble with parents saying ‘wait a minute, my son and his girlfriend had a good relationship, how can he have raped her,” because the issue of consent is there. So even though the law was intended to protect kids from sexual predators and pedophiles, it has, I'm guessing, the unintended consequence of also going after high school boyfriend and girlfriends that at one point had a consensual relationship but got upset. They broke up, and so now one person is saying that he or she raped me, so now [the law] is going after that ex boyfriend or girlfriend.”

We’ll get to the more practical advice. What should parents do to keep their kids from taking these illegal photos in the first place?

“I would say the first thing: You’ve just got to be honest with your child and say, look, I know you’re in a relationship. Whatever you do, tell your boyfriend or your girlfriend to not send you nude photos, because obviously if you possess them, that's a crime. Distributing them to your friends, that's another crime. And be transparent. Look, the law says that if you’re 18 or 19 and your boyfriend is 15 or 14–high school ages–and if you have sex with them, you can get in trouble. Yeah, you can go to prison for having sex with a minor, and it all stems from the breakup. And if the girl says ‘hey dad, I had sex with my ex-boyfriend, and he's an adult and I'm not’; It has very serious consequences, for prison, and a lifetime registration as a sex offender.”

Gosh.

“So yeah, I would say, just, tell your kids, be honest. This is what can happen, you know? Don’t ask for [photos], don’t get them.”

Not to go off topic, but how do Romeo and Juliet laws factor in?

“I’m glad you brought that up. So the Romeo and Juliet law in Texas says that, as long as the difference between the boyfriend and girlfriend is three years, or no more than three years, then that law protects them. 

But as a defense, the accused would say, ‘hey, wait a minute judge. I'm 18 and she’s 15; under the law, I'm protected, or that’s a defense from being charged for this offense, right?’

The unfortunate thing for us in doing research on this particular issue–the Romeo and Juliet defense–is that we haven't found whether the supreme court in Texas or the court of criminal appeals, has; Let me put it to you this way: different appellate courts in Texas have said, the law just says 3 years. But, the argument can be made, was it three years from, for example: I’m 15, he's 18? Or is it three years from like, hey, i was born in, you know, 2004. And she was born in 2007? So is it 3 years to the month? Because we have cases where it's three years and one month. There’ve been differences in the appellate courts as to, hey, it’s 3 years to the month, or it’s 3 years from the date of birth, so that’s the problem that we’ve had.”

“So decisions are coming up a lot more now that parents are aware of it, and now that adults know, hey, wait a minute, maybe these deleted messages can help me, or they can save my life, or keep me out of jail.”

If a parent finds their child in possession of explicit materials, what next steps can they take?

“Yeah, so if the parent discovers the photos or the videos, obviously there's a crime being committed, right? The child sending those photos would have to report to law enforcement saying look, I sent my boyfriend these photos and videos, so he's now in possession [of them]. Of course law enforcement goes and searches the kid's phone. 

So for the parent, if you find out, I know this sounds very cliche, but definitely talk to an attorney. So that we can preserve the photos and bring them up, if applicable, to law enforcement, and say, my son's girlfriend sent them these photos. He didn’t request them, he didn’t solicit them. She sent them, and now they broke up, and now they're going through a fight, but at least start the process to make sure that he doesn't get in trouble. He doesn't get arrested or doesn’t get charged with something just because he or she got these unsolicited photos.”

And if the child gets caught in possession of explicit materials, what should they do? 

“The same thing; just tell the parents. Tell the parents, the parents can do something about it, right? Either contact an attorney, or have the conversation with the other kid, and say, hey this is going on, our kids are sending photos to each other. Let's just try to quash it, resolve it here and [now] without going to law enforcement”. 

Because juveniles, they won’t go to adult court. They’ll go to juvenile court, but they still have consequences as juveniles. If the offense is so severe that they can be treated as an adult, then they’ll get sent from juvenile court up to the adult courts. If the judge finds that the juvenile acted in such a hateful, spiteful, or serious enough way to be considered as an adult, then the child would be adjudicated as an adult, and he’ll go from juvenile court to adult court.”

So that’s defined by the DA [district attorney] and the prosecution, what they decide to pursue?

“That’s right.”

Because of the [relative frequency] of these crimes, do they tend to go for the fences, do they try the highest charge possible?

“No, I mean, the prosecutors do their job, which is to protect the victim. So on these types of child sex offenses, whether it's aggravated sexual assault, continuous sexual assault, super aggravated; yeah, they're always going to go for the most serious punishment: prison time, lifetime registration, no probation. 

But in situations where there's that three [year] age difference, or it's a boyfriend and girlfriend in high school, some prosecutors are open to mitigating evidence, mitigating discussion, to try to come to a resolution as to, hey, does this kid need to register as a sex offender or not? Can we just give him a less severe punishment? We're still gonna punish him, but the question for a defense lawyer is, ‘Hey man, I don’t want my client registering as a sex offender. I mean this was a mutual potential relationship, to the extent that the minor can consent, you know what I mean? He or she should not register as a sex offender’. They’ll still get punished, but we’re trying to avoid the sex offender registration status.” 

I appreciate you parsing that for us. If you find that pictures of your child are being disseminated somehow; what can a parent do?

“Contact an attorney, contact law enforcement, because if your child’s photos are being disseminated, now you’re worrying about much larger things than a boyfriend/girlfriend relationship. Now you’re worried about child trafficking, sex trafficking, multinational or international child pornography rings. So definitely contact law enforcement; SAPD, Bexar County Sherrifs, or even FBI, just to make sure they follow the [trail] of where the photos were sent to, who has them, and put a stop to it.

Even if your child produced it, that shouldn’t stop you from contacting law enforcement, right? It doesn’t mean he or she is in trouble. If they did something wrong, let’s keep it from getting worse.”

Pulling the lens back a little bit, with social media as ingrained in our lives as it is, do you foresee any other related risks on the horizon?

“Oh yeah, man. I mean social media is changing every single day. There're new apps for chatting every day. I just learned about BeReal [an app that asks its users to share via photos what they’re doing at a given moment], you know? Every one of these apps, they’re intended for socializing, right? But like we said, there're always these unintended consequences of it, right? Child predators. Child pornography videos, human trafficking, sex trafficking, so yeah, I mean I could see how the laws may have to evolve because these apps are being used for, you know, for all these bad purposes.”