Most of us carry a phone with capabilities that would have seemed outlandish just a short time ago. Our cars, electronics, even our refrigerators are now connected. Cheap microchips and always on connectivity provide us with all sorts of new tools and applications. Usually, without thinking, we lead our private lives in public. We share our location with friends and family with GPS applications and endless Tweets. We provide up to the minute reviews on what we are doing and send volumes of e-mails with greater ease and less filtering than a telephone call. We visit websites in the privacy of our homes believing that nobody will ever know what we are doing.
But, do we ever think about the implications? Do we really evaluate the consequences? And do we ever really consider how these new technologies can harm us in family law disputes concerning divorce, custody, support and property distribution?
The answer is that clearly most people do not. As family law attorneys we often see the other side of technology and, to be honest, will use it to the benefit of our clients. Facebook posts, emails, Tweets and other parts of the electronic trail are more and more commonly used in family law matters.
One technology that people may not even consider a potential liability is Global Positioning System. Most of us think of GPS as turn by turn directions or something that tells us where we can find the nearest Starbucks or gas station. That exact same, inexpensive technology is also used for accurate and round the clock surveillance that would have been unimaginable just a few years ago.
It is a burgeoning issue that has already made it to the highest Court in the land. The Supreme Court of the United States was recently called upon to address the irresistible march of technology and the potential consequences of its misuse in United States v. Antoine Jones. The issue before the Court in Jones was our government’s unlimited ability to monitor our daily activities and what many consider our basic right to privacy through the use of GPS. US v. Jones concerned itself with the constitutional issue of unreasonable search and seizure through the use of a GPS tracking device during a drug trafficking investigation. While that is more serious than your typical family law issue, it is still of interest. (We have written a much more detailed paper on this specific case which you can find here.) The technology utilized in this case was a simple, widely available device which can also be used in a divorce or similar proceeding. A clearly alarmed Justice Sotomayor even raised the specter of use of similar data in something like a child custody dispute. It is a matter with which anyone involved in a family law should be aware. We have been utilizing such technology through our investigators for years.
Perhaps the most telling aspect of US v. Jones is that the Supreme Court (and other Courts in similar proceedings) and the various state legislatures and Congress have done nothing to limit the use of such technology by private citizens. While the government is restricted from warrantless search including data obtained by GPS, the same restrictions do not apply to private citizens such as two litigants in a divorce proceeding.
Family Law & Technology
The use of technology at issue clearly troubled the Justices as evidenced by the opinions penned in US v. Jones because of the amount of data that was easily generated by the cheap, readily available GPS device used by the police. Every single turn, stop, and route used by Mr. Jones was tracked and automatically fed back to a remote computer. It doesn’t take much imagination to see how this data could be useful in something like a divorce. For very little money, anyone can purchase a GPS tracking device and attach it to their spouse’s car and just wait for the data to come back in on their computer, tablet or even cell phone. What would have once cost thousands of dollars for hundreds of hours of private investigator`s services can now be acquired for comparatively little by attaching a magnetized box to the inside of your spouse`s bumper. It is even easier still to activate location finding software on their cell phone.
Of course, sometimes the most harmful or useful information, depending on your point of view, doesn’t even require a GPS device. Social networking sites have become a treasure trove of data for family law attorneys. Pictures, status updates, or the sordid details of last night’s party are shared with the world, sometimes even outside of your control. People even activate tracking software on their own phones to share with their friends. While your cheating spouse might not be the one to do this, the twenty-something personal trainer or secretary they are having an affair with probably don’t think twice about using those features on their cell phone.
You may ask so how does this impact me or what steps can I take to protect myself? The honest answer is there is only so much you can do. The best defense is to not to do anything you wouldn’t want your spouse or the rest of the world to know about. Most behaviors should seem obvious, but you’ll have to consult with your attorney on what you have probably never considered a point of exposure. There are simple, common sense steps you can take if you are involved in a family law matter:
- Social Networking Sites: Lock down your profile! On sites like Facebook, make sure you select maximum security settings. Even then you should severely curtail Facebook activity centered around your personal life.
- Inform Friends: have a conversation with friends and let them know what’s going on. Ask them to refrain from tagging you in pictures or posting pictures of you on social networking sites. If they are friends of your spouse, you may even consider cutting social networking ties with them.
- Email: creates a written record of everything. Be careful what you say because that information may come back to haunt you. And by the way, don’t be so naïve as to believe that by hitting the delete button you have actually gotten rid of anything.
- Hacking: under no circumstances should you steal passwords or hack into email or phone records of your spouse. It is illegal and can have consequences for your case. DON’T DO IT! If you think there might be information that is helpful then discuss it with your attorney. Most data can be retrieved even when your spouse thinks that they have destroyed it.
- Lawyer Up: engage with your attorney early on in the process. Clients often retain an attorney only once things have gone pretty far. By that time, damage may be done or opportunities may be lost. It’s in your best interest to consult with a lawyer early in the process so that you can know what to look for.
- Check Under Your Bumper: The GPS device used in US v. Jones was basically a cell phone in a magnetic box placed under the bumper. You might want to take a look every once in a while just to be sure! It might even be an idea to visit your auto mechanic to make sure that there has not been a more creative or professional placement that you would otherwise not be able to find on your own.
You can find more information on the US v. Jones case in the Technology Evidence in a Divorce we wrote including more information on GPS in family law. We will also have a new post in the coming weeks on Facebook and social networking as they relate to family law. Keep an eye out for it.