Fellow blogger Diana Skaggs, of the Divorce Law Journal blog, alerted me to an article from this weekend’s New York Times, which appears below:
A word of extreme caution is in order here. I have published articles here and here and here previously about how many of the techniques mentioned in this article violate state and federal criminal laws.
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.
Divorce lawyers routinely set out to find every bit of private data about their clients’ adversaries, often hiring investigators with sophisticated digital forensic tools to snoop into household computers.
“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.”
Privacy advocates have grown increasingly worried that digital tools are giving governments and powerful corporations the ability to peek into peoples’ lives as never before. But the real snoops are often much closer to home.
“Google and Yahoo may know everything, but they don’t really care about you,” said Jacalyn F. Barnett, a Manhattan-based divorce lawyer. “No one cares more about the things you do than the person that used to be married to you.”
Most of these stories do not end amicably. This year, a technology consultant from the Philadelphia area, who did not want his name used because he has a teenage son, strongly suspected his wife was having an affair. Instead of confronting her, the husband installed a $49 program called PC Pandora on her computer, a laptop he had purchased.
The program surreptitiously took snapshots of her screen every 15 seconds and e-mailed them to him. Soon he had a comprehensive overview of the sites she visited and the instant messages she was sending. Since the program captured her passwords, the husband was also able to get access to and print all the e-mail messages his wife had received and sent over the previous year.
What he discovered ended his marriage. For 11 months, he said, she had been seeing another man — the parent of one of their son’s classmates at a private school outside Philadelphia. The husband said they were not only arranging meetings but also posting explicit photos of themselves on the Web and soliciting sex with other couples.
The husband, who like others in this article was reached through his lawyer, said the decision to invade his wife’s privacy was not an easy one. “If I were to tell you I have a pure ethical conscience over what I did, I’d be lying,” he said. But he also pointed to companies that have Internet policies giving them the right to read employee e-mail messages. “When you’re in a relationship like a marriage, which is emotional as well as, candidly, a business, I think you can look at it in the same way,” he said.
When considering invading their spouse’s privacy, husbands and wives cite an overriding desire to find out some secret. One woman described sensing last year that her husband, a Manhattan surgeon, was distant and overly obsessed with his BlackBerry.
She drew him a bubble bath on his birthday and then pounced on the device while he was in the tub. In his e-mail messages, she found evidence of an affair with a medical resident, including plans for them to meet that night.
A few weeks later, after the couple had tried to reconcile, the woman gained access to her husband’s America Online account (he had shared his password with her) and found messages from a mortgage company. It turned out he had purchased a $3 million Manhattan condominium, where he intended to continue his liaison.
“Every single time I looked at his e-mail I felt nervous,” the woman said. “But I did anyway because I wanted to know the truth.”
Being on the receiving end of electronic spying can be particularly disturbing. Jolene Barten-Bolender, a 45-year-old mother of three who lives in Dix Hills, N.Y., said that she was recently informed by AOL and Google, on the same day, that the passwords had been changed on two e-mail accounts she was using, suggesting that someone had gained access and was reading her messages. Last year, she discovered a Global Positioning System, or G.P.S., tracking device in a wheel well of the family car.
She suspects her husband of 24 years, whom she is divorcing.
“It makes me feel nauseous and totally violated,” Ms. Barten-Bolender said, speculating that he was trying to find out if she was seeing anyone. “Once anything is written down, you have to know it could be viewed by someone looking to invade or hurt you.”
Ms. Barten-Bolender’s husband and his lawyer declined to discuss her allegations.
Divorce lawyers say their files are filled with cases like these. Three-quarters of the cases of Nancy Chemtob, a divorce lawyer in Manhattan, now involve some kind of electronic communications. She says she routinely asks judges for court orders to seize and copy the hard drives in the computers of her clients’ spouses, particularly if there is an opportunity to glimpse a couple’s full financial picture, or a parent’s suitability to be the custodian of the children.
Lawyers must navigate a complex legal landscape governing the admissibility of this kind of electronic evidence. Different laws define when it is illegal to get access to information stored on a computer in the home, log into someone else’s e-mail account, or listen in on phone calls.
Divorce lawyers say, however, if the computer in question is shared by the whole family, or couples have revealed their passwords to each other, reading a spouse’s e-mail messages and introducing them as evidence in a divorce case is often allowed.
Lynne Z. Gold-Bikin, a Pennsylvania divorce lawyer, describes one client, a man, who believed his wife was engaging in secret online correspondence. He found e-mail messages to a lover in Australia that she had sent from a private AOL account on the family computer. Her lawyer then challenged the use of this evidence in court. Ms. Gold-Bikin’s client won the dispute and an advantageous settlement.
Lawyers say the only communications that are consistently protected in a spouse’s private e-mail account are the messages to and from the lawyers themselves, which are covered by lawyer-client privilege.
Perhaps for this reason, divorce lawyers as a group are among the most pessimistic when it comes to assessing the overall state of privacy in the digital age.
“I do not like to put things on e-mail,” said David Levy, a Chicago divorce lawyer. “There’s no way it’s private. Nothing is fully protected once you hit the send button.”
Ms. Chemtob added, “People have an expectation of privacy that is completely unrealistic.”
James Mulvaney agrees. A private investigator, Mr. Mulvaney now devotes much of his time to poking through the computer records of divorcing spouses, on behalf of divorce lawyers. One of his specialties is retrieving files, like bank records and e-mail messages to secret lovers, that a spouse has tried to delete.
“Every keystroke on your computer is there, forever and ever,” Mr. Mulvaney said.
He had one bit of advice. “The only thing you can truly erase these things with is a specialty Smith & Wesson product,” he said. “Throw your computer into the air and play skeet with it.”