written by Edouard J.P. Bouquet
Whether you call it a cell phone, mobile device, or smart phone, today’s devices are technological wonders. And the best friend of your “soon to be ex’s” divorce attorney.
They make life easier and have become extensions of ourselves. Yet, for all their convenience, do we ever think of potential consequences? Here’s a fact. Your mobile device keeps track of everything you do. Sure, it’s useful but also has serious risks. Someone with a little technical expertise and information now has a portal into your entire life; every place you have been; everyone with whom you have spoken; every web site you have visited.
Do I have your attention yet?
A smart phone is, in fact, a small computer with most of the characteristics of your laptop or desktop computer except that it is with you constantly. It has a memory; it stores data and keeps track of what has transpired on it, intentionally or otherwise, even when you think you have erased it. Every two years, or less, we upgrade to newer and better phones with better capabilities because of faster processors and more memory. But, this also means they can and do retain more data about us, whether you intend it to or not.
Mobile Devices and Divorce
Beginning with the basics, when you make a phone call using a cell phone, a record is created. This type of information is available readily on-line on your bill including phone numbers called, time of and duration of calls as well as locational information. The same applies to text messages. This is the obvious, although often overlooked and potentially quite valuable information to your soon to be ex-spouse’s divorce attorney that we generate on our cell phones every time we use them. If you are texting your boyfriend the personal trainer, tennis pro or pool boy at 2a.m. while your husband is asleep, you are creating a record that you may find hard to explain. Some may opt for a surreptitious mobile phone for these purposes but, the fact remains that you have created an almost unimpeachable source of evidence.
Now, the really dangerous stuff: Using state of the art equipment, computer forensics experts can copy the entire memory of your computer, tablet and/or cell phone in a matter of hours or even minutes leaving no trace of their presence. This includes data that you think you have erased. Speaking from many years of experience as an attorney, trust me when I tell you, you haven’t. Despite your best efforts, short of completely re-formatting and overwriting the memory and hard drive, or destroying it (think 60 seconds in a food processor), which is the better option, the data is just waiting for a trained expert to find it and share it with your spouse or their attorney.
What this means to you is that every e-mail and every text message may well still be on your cell phone waiting for someone else to read it. Every “selfie” you Brett Favre wannabes take or the photos and videos of you and your girlfriend are still on that “smartphone.” In the right computer forensic expert’s hands, you and that cell phone have created more damaging photographs than Jake Gittes (The immortal private eye from the movies Chinatown and The Two Jakes, starring Jack Nicholson as our “hero” Jake Gittes. Yes, I am dating myself, but a classic is a classic) could ever have dreamed of getting on his best day.
Every internet search also leaves a record which might be of interest to your opponents. Were you accessing a hidden bank account? Were you looking at pornography of a certain type that might trouble a judge in a custody case? Were you looking for divorce attorneys on the internet and reading some article about how to plant a tracking device on your husband’s car or perform an information dump from your wife’s i-Phone? Were you booking flights to Russia to seek asylum?
Every place that you have been, especially when specifically guided by your phone’s Global Positioning System (GPS), will leave a record in the memory of your cell phone just waiting to be examined by a top expert and shared with your spouse and his/her attorney. As far as real time surveillance is concerned, i-Phones that you share on a family “network” can be used to gather locational information without any particular effort by almost any novice. Locational programs are also available for Android based systems that run in the background on your phone.
Divorce, Family Law, & Technology Evidence
The potential uses for this GPS information are almost unlimited. Have you been to the gentleman’s club? Were you visiting your boyfriend/girlfriend? In a custody case, have you been to your psychologist or psychiatrist? Were you at a bar when you told your husband that you had to work late and couldn’t be home with the kids? Were you at a hotel in downtown Washington at 2 in the afternoon when you work in Gaithersburg?
Turning the GPS feature off will not solve the problem either. It is absolutely possible, if not easy, to trigger a GPS on a telephone remotely and without prior consent. Now for the really bad news: this can be accomplished even when the phone is turned off. You don’t even have to be in the National Security Agency to do it. A signal can be sent which will locate the phone either by Global Positioning System and/or by triangulating the cell towers surrounding the phone. Just like that, your location has been disclosed and you will have no idea that it has occurred. The phone will not “turn on” when this signal is sent. It will just confirm your location for the investigators seeking to prove that you are somewhere where you are not supposed to be.
In our White Paper focusing on GPS and the United States Supreme Court’s ruling in Jones vs. the United States, I discussed the shock and concern of the highest court in the land at the prospect that technology, specifically GPS, could be abused by our government to gather information about any one of us by placing a tracker underneath our cars. And that was in those innocent days before people realized that the NSA was reading our e-mail, monitoring our internet access and listening to our phone calls. The restrictions imposed by the Supreme Court however, only apply to the government– not to private citizens. This leaves your estranged wife or her divorce lawyer in the private sector free to gather information about you with little or no restriction.
Granted, some of what is discussed within this article is not strictly speaking legal, although most of it is. More to the point, there is an important distinction between what may be used as evidence in a court of law and intelligence which can be gathered and utilized in other ways. Illegally obtained information will be inadmissible in most courts. However, for those less concerned with the initial legalities of their actions, information can be gathered and the sources backtracked through to legally useable sources. In most instances where the intelligence gathered was discovered through marginally legal methods, your opponents will not even trouble themselves to create a plausible source for the information. Instead, it will be used to check legally obtained information or simply used to box you into a corner.
The Solution for Your Indiscretions
The best solution is to eliminate the indiscretion. However, as a family law attorney with over twenty years of experience, I’m realistic in my expectations of human nature. There are things that you can do to protect yourself. Some are more obvious than others.
- Don’t go to the strip club but if you do, and you probably will, don’t bring your phone with you. You shouldn’t be answering calls there anyway. The music in the background isn’t the type they play at client dinners, like the one you told your wife you HAD to attend.
- Don’t e-mail or text your boyfriend/girlfriend.
- Don’t access your hidden bank account using your smartphone and don’t send e-mails talking about it.
- Resist the temptation to create photographic records of your indiscreet behavior.
- Don’t do anything on or with that phone that you don’t want someone else to have the opportunity to see.
- Operate under the assumption that anything you do with that phone is going to afford someone else the opportunity to catch you doing it
I am not offering a road map for poor behavior. My point is really rather simple. When you are engaged in a family law dispute like a divorce, you must be aware of the implications of using technology. As an attorney, I am going to look for and find legal sources of evidence that help advance my client’s objectives. The days of private investigators endlessly following subjects in the manner of the aforementioned Mr. Gittes are over. Each of us carries the best private eye available in our pocket or purse. And we use it without forethought or restraint. As I tell each new client, be careful with how you use your mobile device and technologies like social networking. You are creating a treasure trove of potential evidence for modern investigators to document your every move. Take this advice and save yourself legal fees and unnecessary headaches by avoiding the creation of volumes of damning evidence with which your family law attorney will have to contend. Or don’t; my kids need to go to college too.
