Protecting Your Tech Privacy during a Divorce
By Miriam M. Saffo J.D.
One of the most important but often overlooked first steps in the process of separation or divorce is regaining control over your tech privacy. During intact relationships, the concept of privacy can be rather muddy, and couples have wide-ranging privacy standards. It is not unusual for spouses to know one another’s passwords and have access to each other’s accounts and devices. Sometimes both spouses are aware of this, and sometimes not. While this type of intimate info-sharing within a family can certainly make life easier, it can just as certainly become dangerous in cases involving abuse for those deciding to separate or divorce.
Beware the danger!
From the moment you start an internet search for a divorce attorney or divorce laws on a portable device, to vetting positions and strategies with an attorney over e-mail on a laptop, to posting self-damaging information on social media, the perils of unsecured technology are everywhere. Moreover, information gathered by a significant other or spouse may very well be legally admissible against you in court.
There is an important distinction between whether information was gathered by legal or illegal means. In general, only information obtained by “legal snooping” can be used in court. You can think of “legal snooping” as snooping for things to which you do not have a reasonable expectation of privacy. This can include information obtained because it was left lying around or on devices/accounts that are not password protected. It can also include information collected from devices/accounts whose password is known or easy to guess.
“Illegal snooping,” includes the use of hacking software or devices, such as using software to decode passwords, or planting recording or tracking devices to obtain information. However, Michigan is a one-party consent state for recording conversations. That means at least one party in a conversation must know it is being recorded for the audio to be legal. Therefore, it is illegal to tape conversations your children are having with their other parent unless you are a party to those conversations. Even then, if you are considering tape recording these conversations, discuss it with your attorney, as these recordings are powerful evidence which can just as forcefully backfire in court. Keep in mind, information obtained through illegal means is not permitted for use in court and can result in criminal (sometimes felony) prosecution.
As early on as possible, anyone contemplating or starting the divorce process must secure their technology. First, change all your passwords on every account and device. Make a checklist, including emails, social media accounts, separate bank accounts, password management accounts, cell phones, laptops, tablets, and desktops. Consider reinforcing passwords with additional protection features offered by many devices such as face recognition, fingerprint scanning and dual-factor authentication. Above all, do not have the same password across all devices and accounts! Make sure to have secure, unique password for everything. Change them every 30 days moving forward.
And remember - devices that offer connectivity between one another, particularly Apple products – are going to sync up. You could send a text message to someone from your phone while your spouse is looking at their i-pad, and your texts may show up on their i-pad if your accounts are synced. A spouse knowing or sharing the other’s Apple ID and password can give them access to text messages, pictures, emails, contacts, phone/facetime records, anything knowingly or unwittingly saved to the iCloud, etc. without needing the originating device. Sometimes this breach occurs because a parent shares the Apple ID with a child and the other gets access that way. A child may be seeing angry texts between their parents because they used their Apple ID to download a game. Microsoft, Android, and Google products offer similar features. Also, consider contacting your cellphone providers to see what steps they can help you take to secure your privacy, as sometimes such information can be accessed by the simple virtue of being on a shared plan. This type of access is dangerous and opens the door for information gathered by “legal snooping” to be used against you, emphasizing the importance of changing your passwords and unlinking such accounts from the very start.
Evaluating how you use and store your devices and accounts is also important in securing your tech privacy. For example, change your settings so notifications are not readily visible from the lock screen, make sure all devices are password protected, and keep them stored in a secure location that your spouse cannot access. Whenever possible, try to limit devices or accounts shared with children. Children bring their i-pads to the other parent’s house, and the other parent might see e-mails and text messages you are sending from your phone. Check privacy settings on your social media accounts to make sure that information you post, share, or like - whether past or present - is not readily available outside of your friend/follower groups. And please - do not post, share, or like anything about your divorce or spouse, whether direct or indirect.
Check applications on your devices and disable GPS permissions of those that can track your locations. Spouses sometimes put GPS trackers on the other spouse’s phone without telling them. So check your list of “apps” and check with whom you are sharing your location.
If you use Ring or similar camera software, check who has access to your cameras.
Pay attention to emails from account providers alerting you of log-in activity and make sure you recognize those attempts. Finally, be mindful of where you are plugging in your devices, even if it is just to charge them. Sometimes, plugging in a cell phone or tablet to a computer can unintentionally download personal information onto that device.
As much as we rely on technology in our daily lives, our accounts and devices hold a gold mine of personal information about us, much of which has no business haphazardly landing in the hands of your spouse’s attorney. Taking immediate steps to secure your tech privacy by addressing tips in this blog and/or consulting with a technology professional will be an important step in helping you protect and regain control of your personal information.
It is important to note now that you have worked so hard to secure your privacy: if your spouse’s attorney requests all of your non-privileged e-mails, texts, social media posts, etc., you will be required to produce it. The Court will likely require you to relinquish your phone or computer so that a mirror image of the data can be made, and you may not delete the information, nor may your attorney instruct you to do so. Spoliation of evidence is a serious offense, and can result in sanctions for you in court, and ethical trouble for your lawyer.
As much as possible, stay off of social media! If social media is an outlet for you, limit yourself to positive, non-controversial posts. Do not post anything that you would mind the judge reading in court. Do not post pictures of your children. Absolutely do not post anything regarding your case, the judge, the friend of the court, your spouse, or any of the attorneys involved in the case.
If you find the technology or privacy issues impossible to manage, talk to your attorney. He or she will help you navigate the issues, and will be able to refer you to a technology specialist who will be able to assist you in protecting your privacy and getting you back to a place where your technology makes your life easier again.