I was interviewed on this topic by Atlanta Journal and Constitution reporter Bill Torpy last week and the article appeared in the paper on Sunday, February 24, 2008, in the Living section and online today. It is reprinted below:
Marietta divorce attorney Stephen Worrall increasingly sees clients come to his office and excitedly tell him: "You won’t believe what I found on my wife’s e-mail."
The information may be evidentiary dynamite — juicy, sordid and damning. But the veteran attorney immediately will halt the budding sleuth mid-sentence. "We stop them right there and determine how he came about it," he said.
The client may have committed a crime, and Worrall doesn’t want to be a party to it.
Evidence like e-mails, cellphone records, Web site records and even GPS information is increasingly making its way into divorce battles, plotting almost indefensible maps of a cheating spouse’s footprints.
Electronic evidence has changed the face of divorce. A poll conducted by the American Academy of Matrimonial Lawyers released this month found that 88 percent of its members surveyed had seen a "dramatic increase" in such evidence.
John Mayoue, an Atlanta divorce attorney and author of "Southern Divorce" and "Protecting Your Assets From a Georgia Divorce," said the increase in the use of electronic evidence "has been exponential. It’s raging. It’s also the most raging issue" in divorce law.
"The day of the private eye peering into a window is mostly gone," he said. "This electronic information is so much better. It’s the most compelling evidence in terms of financial wrongdoing, in terms of affairs — someone in their own words saying things they’d never say in court. ‘Hey, I’m worth $1 million. Hey, I’m having an affair.’ People are more likely to be caught than ever before."
The evidence can be devastating. In a recent case, the wife, who was thought to be cheating, was asked to turn over a cellphone. "She forgot she had photos [of her and her lover] saved," Mayoue said. "They were photos that said they were more than just friends."
But, Mayoue adds, "the vexing issue is that of privacy. How was that evidence retrieved?"
A spouse spurned will stop at virtually nothing to prove a partner has been up to no good. They place keystroke spyware to see what has been typed on a computer. They sneak off with BlackBerries or laptops to get a forensic expert to retrieve information that has been deleted. They steal passwords. They even slap global positioning system, or GPS, devices on vehicles to see where their spouses have gone.
Worrall had one case in which both parties wanted examinations of each other’s computer. "Both had Match.com entries on their computers," he said, referring to the online dating service.
Judges are frequently asked by parties in a divorce for court orders allowing them to examine a spouse’s computer or retrieve cellphone records. They are also often asked to rule on the admissibility of evidence that has already been retrieved.
"Cellphone records can show they were in Alabama when they said they were in Marietta," she said. "As our technology expands, the ability to track people expands."
Legal bounds still murky
The law has been trying to keep up with technology, said Wright, who sees e-mail evidence in almost all contested divorces. "It’s an area of law that attorneys are struggling with. It’s a difficult area of law. It’s evolving just as technology is evolving."
Georgia law has provisions prohibiting computer theft, trespass and invasion of privacy. But each case has gray areas. Was it a personal laptop? (Most likely not OK to use as evidence.) Or was it a family communal computer? (Probably OK as evidence.) Did the spouse ever share the password? (If so, probably usable.)
"Generally, if the devices are not normally accessible to the person who has ‘broken’ into them, i.e. password protected, or are not owned by the person who is seeking to use the data, I have ruled out such evidence," Gwinnett County Superior Court Judge Billy Ray said in an e-mail. "If it is not your device, or if you are not a person who has access to it on a normal basis, my rulings have been that you can’t use it."
"I have seen GPS tracking devices used," Ray said. "Normally, it is when one spouse also has ownership of the car. It is hard to say they can’t do it if it is their car, too. Kind of like breaking down your own front door; if it is your door, you can do with it as you please."
Mayoue said the appeals courts haven’t dealt with a lot of the questions yet.
"The courts are slow to deal with these issues," he said. "People haven’t pushed these cases [through the legal system]. They’ve tended to settle."
Electronic evidence helps settle cases quicker because it is so graphic and damning, said George Stern, an Atlanta lawyer practicing divorce law for 30 years and former president of the American Academy of Matrimonial Lawyers.
Pornography on the computer — thought to be deleted — is a killer in divorce cases, he said, as are e-mails and cellphone calls to lovers.
"You’d be shocked how often a person will call their girlfriend or boyfriend," he said. "I think husbands are much more careless than wives."
Why would people sneaking around not cover their tracks? Stern thinks the use of e-mail and cellphones is so routine that people just don’t think about it.
"People get lazy," Stern said. "And, for the lack of a better word, stupid."
Wright said the omnipresence of technology might be an impetus for people to behave.
"The world has gotten smaller with the World Wide Web and computers," she said. Her advice? "Live your life like you’re living in a small town."
Edior’s Note: The text of Georgia’s statute on computer crimes is reprinted below:
§ 16-9-93. Computer crimes defined; exclusivity of article; civil remedies; criminal penalties
(a) Computer theft. Any person who uses a computer or computer network with knowledge that such use is without authority and with the intention of:
(1) Taking or appropriating any property of another, whether or not with the intention of depriving the owner of possession;
(2) Obtaining property by any deceitful means or artful practice; or
(3) Converting property to such person’s use in violation of an agreement or other known legal obligation to make a specified application or disposition of such property
shall be guilty of the crime of computer theft.
(b) Computer Trespass. Any person who uses a computer or computer network with knowledge that such use is without authority and with the intention of:
(1) Deleting or in any way removing, either temporarily or permanently, any computer program or data from a computer or computer network;
(2) Obstructing, interrupting, or in any way interfering with the use of a computer program or data; or
(3) Altering, damaging, or in any way causing the malfunction of a computer, computer network, or computer program, regardless of how long the alteration, damage, or malfunction persists
shall be guilty of the crime of computer trespass.
(c) Computer Invasion of Privacy. Any person who uses a computer or computer network with the intention of examining any employment, medical, salary, credit, or any other financial or personal data relating to any other person with knowledge that such examination is without authority shall be guilty of the crime of computer invasion of privacy.
(d) Computer Forgery. Any person who creates, alters, or deletes any data contained in any computer or computer network, who, if such person had created, altered, or deleted a tangible document or instrument would have committed forgery under Article 1 of this chapter, shall be guilty of the crime of computer forgery. The absence of a tangible writing directly created or altered by the offender shall not be a defense to the crime of computer forgery if a creation, alteration, or deletion of data was involved in lieu of a tangible document or instrument.
(e) Computer Password Disclosure. Any person who discloses a number, code, password, or other means of access to a computer or computer network knowing that such disclosure is without authority and which results in damages (including the fair market value of any services used and victim expenditure) to the owner of the computer or computer network in excess of $500.00 shall be guilty of the crime of computer password disclosure.
(f) Article not Exclusive. The provisions of this article shall not be construed to preclude the applicability of any other law which presently applies or may in the future apply to any transaction or course of conduct which violates this article.
(g) Civil Relief; Damages.
(1) Any person whose property or person is injured by reason of a violation of any provision of this article may sue therefor and recover for any damages sustained and the costs of suit. Without limiting the generality of the term, "damages" shall include loss of profits and victim expenditure.
(2) At the request of any party to an action brought pursuant to this Code section, the court shall by reasonable means conduct all legal proceedings in such a way as to protect the secrecy and security of any computer, computer network, data, or computer program involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party.
(3) The provisions of this article shall not be construed to limit any person’s right to pursue any additional civil remedy otherwise allowed by law.
(4) A civil action under this Code section must be brought within four years after the violation is discovered or by exercise of reasonable diligence should have been discovered. For purposes of this article, a continuing violation of any one subsection of this Code section by any person constitutes a single violation by such person.
(h) Criminal Penalties.
(1) Any person convicted of the crime of computer theft, computer trespass, computer invasion of privacy, or computer forgery shall be fined not more than $50,000.00 or imprisoned not more than 15 years, or both.
(2) Any person convicted of computer password disclosure shall be fined not more than $5,000.00 or incarcerated for a period not to exceed one year, or both.