NYT on Digital Evidence and Divorce

A friend emailed this NYT article:

Tell-All PCs and Phones Transforming Divorce
The age-old business of breaking up has taken a decidedly Orwellian turn, with digital evidence like e-mail messages, traces of Web site visits and mobile telephone records now permeating many contentious divorce cases.

Spurned lovers steal each other’s BlackBerrys. Suspicious spouses hack into each other’s e-mail accounts. They load surveillance software onto the family PC, sometimes discovering shocking infidelities.

The article also mentions using GPS to track spouse; the ethical issues some spouses have when they decide to spy; and how the person spied upon can find it “particularly disturbing.”

In the legal issues, though, the article seems to be lacking. The only consideration is the admissability of the evidence: whether it can be seen by the divorce court. Furthermore, the entire article seems to gloss over the difference between the use of electronic evidence gained via discovery — the legitimate, court supervised method of gaining records from the other side — and the surreptitious access to information that is the use of spyware and unauthorized access to devices.

The legal issues are serious. The Electronic Communications Privacy Act (ECPA) governs interception of electronic communications. Intercepting an electronic communication can land you jail for five years. 18 USC 2511(4). You can also be sued civilly, being responsible for attorney’s fees and minimum damages of $10,000. Besides interception, accessing stored communications is regulated by the Stored Communications Act. Accessing someone’s stored communications can be punished by up to a year in jail. 18 USC 2702. And it can also expose you to suits of a minimum of $1000 plus attorneys fees. 18 USC 2707.

But under both of these, the issues can get tricky if the computer is shared between people, or if people have previously shared their passwords with each other. It’s no surprise that a reporter talking to divorce lawyers didn’t go into wiretap laws. But at least they should not have mixed up the very legitimate accessing of stored information during a lawsuit with spousal espionage and stalking.

Posted: September 17, 2007 in: