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.
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.
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.
Written By Miriam M. Saffo J.D