Gaining an information advantage over your spouse in a divorce case is one of the most understandable wishes that you can have entered your case. From the day that your case is filed, it can seem like you and your spouse are gladiators, sparring with the knowledge you possess. Your attorneys use that information to go back and forth against one another to see who can gain an advantage. Hanging in the balance are considerations regarding your children and your community property.
One of the ways to gain information regarding your spouse and their activities currently is to try and get access to their online or digital habits. Just about everyone has a smartphone, computer, laptop, tablet, smartwatch, or other assistive device that helps with their activities of daily living. Whether you are trying to get organized, lose weight, find the best Mexican food restaurant in your area, or anything in between, odds are good that you are going to use technology to help achieve that goal. That use of technology can potentially be a part of your divorce if you use the internet, instant messaging, or social media in a way that produces evidence that is relevant to your case.
However, how that evidence is obtained is also important. There is a lot of grey area as far as how you can obtain evidence against your spouse regarding your divorce. Did you get the evidence by snooping or did your spouse leave their laptop open and you “just so happened” to see a message between them and their new love interest? Whatever the case maybe you need to think long and hard about how you are using your digital devices and how that can impact your divorce.
In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss the different ways that technology, spying, information gathering, and the internet can be used for and against you in your divorce. If you have any questions about the material that you’ve read about here in this blog post, we recommend contacting our office today. Doing so can allow you to schedule a free-of-charge consultation with one of our licensed family law attorneys. With the attorney, you can ask questions and receive feedback and information about your specific circumstances.
Technology is changing quickly regarding "spying"
As you might imagine the technology associated with tracking the behavior of you and I online have progressed a great deal in the past few years. The surveillance industry, as it is sometimes called, has developed better and better technology in the past few years to help inquiring minds track the goings-on of a particular person or group of people online. Employers, spouses, and parents alike may all have some degree of interest in the digital behavior of other people.
Consider that hidden cameras, keyloggers, GPS tracking devices, drones, voice records, and spyware were not all available to anyone with some money and some motivation even just a few years ago. However, now these methods to track digital behavior are all at just about anyone’s fingertips. Keyloggers are especially interesting because these tools track what your spouse is typing into their computer. Whether there are messages to a significant other or an email to a potential divorce attorney, it can be tempting to want to gain an advantage in your divorce by utilizing one of these tools in your personal life.
What can these tools tell you about your spouse's digital behavior?
Potentially, these tools can tell you quite a bit about your spouse's digital behavior. A GPS tracker can help you to determine exactly where your spouse is- assuming the location services are accurate. You can even track your spouse's route that he or she took to get to a certain destination. This technology is available on smartphones and smartwatches to track a walking path or just to keep track of your steps for health purposes each day. Many GPS trackers can also tell you when your spouse has arrived at a particular destination or has left from a particular address. You can program an App on your phone to alert you when either of these events occurs.
Benign iPhone Apps may not always be so harmless
Some of the Apps on your cell phone can be used for these types of purposes though they may not appear to be useful tools at first glance. Consider the “find my friend” App on your phone. This App allows you to share your location with another person or view another’s location. You can hide your location from a friend at any time by choosing to hide your location. You can also remove a particular person by marking them on your list of friends. This way you can choose who is keeping up with you and who cannot. There are obvious implications for tracking down a spouse using this kind of technology.
Multiple Apps allow you to record your voice using your phone. It used to be that we would have to go to the electronics store to buy a voice recorded or tape recorder to keep track of our thoughts. Now all we must do is take out our phones and start talking to do so. Texas is a state where at least one person needs to know that the conversation is being recorded. So, if you are purposefully going to record a conversation between you and your spouse that is fine because you know that the call is being recorded.
Location tracking on a “find my phone” app is supposed to help you track down your phone after your small child put it someplace that you couldn’t find or you absent-mindedly left it in a location when you were not paying attention. Keep in mind that the same rules apply to a find your phone app as applied to a find my friends app. Other people can potentially keep track of your phone, as well. You can turn this app off your phone or change your login information so that other people cannot see the information about where your phone- and you- are located.
The Electronic Communications Privacy Act
The Electronic Communications Privacy Act (ECPA) protects oral, written, and electronic communications while the communications are being made, are in transit, and when are stored on an electronic device. This would include telephone conversations and electronically stored data contained in emails. It also prohibits the international interception of communication between people when you do not have the permission of the participants to do so.
So, you may be wondering how this federal law works when we just talked about how all you need is one person's knowledge that a phone call is being recorded for that to be legal under Texas law. Texas is a one-party consent state when it comes to taping phone calls or other types of communication. We have all seen that movie, television show, or cartoon where a person wears a "wire" inside of a flower on their jacket lapel or something similar. This is sort of an exaggerated method of showing that recording conversations that you have with other people can be tricky business. You need to think through your decision to do so before engaging in this type of behavior. This is especially true if you believe that the other person may become angry or violent if they were to learn that you were recording them in conversation.
Computer Crime Laws in Texas
Texas has numerous computer crime laws on the books which prohibit unauthorized access to data that is stored on the computer. For example, Texas Penal Code, Section 33.02 states that a person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner. In this context, effective consent includes consent by a person legally authorized to act for the owner. Consent would not be effective if it is induced by deception or used for a purpose other than that which the consent was given for.
What if you are trying to look through your spouse's computer but don't necessarily know the password? By trying to guess the password based on prior passwords that your spouse has used in other applications, that does not mean that you have permission to be able to log into a computer or email account. If nothing else, this should show you the importance of updating passwords regularly and using passwords that are not easily guessed. Do not use the same password in more than one application, as tempting as that can be at times.
What about “revenge porn”?
Unfortunately, one of the sad and scary parts of being online as much as we are as a society is that our most intimate moments could potentially be shared with people without our consent. Any photographs, videos, or other material related to your intimate behavior with your spouse could be utilized by him or her without your permission. This is known commonly as "revenge porn." Sometimes these photos or videos can be shared between your spouse and people that you all know as revenge. Other times these photos and videos can even be posted online to various websites or forums. Actions like this are against the law in Texas.
GPS Tracking- what you need to know
It is legal in Texas to track a vehicle with GPS monitoring that you own. If your cell phone plan has your name on it then you can track the calls and other information on the phone, as well. In a situation where your spouse attempts to argue that the evidence gathered using GPS tracking was done against Texas law then she would be able to request that the evidence be excluded from the record. Another aspect of this discussion to consider is how the information was obtained by your client. Does the method of obtaining the information potentially harm you about parenting and making decisions that are in the best interests of your children?
What are some examples of electronic evidence?
We have already covered that many different types of electronic and digital evidence could be a part of your divorce. The more time that you and your spouse spend online and the larger your presence in that “world” the more digital and electronic evidence there may be to use against you. Before starting your divorce, it would be wise to think through the potential sorts of evidence that may exist in the digital world so that you can prepare your attorney for what you encounter during the divorce itself.
Email accounts are one of the most vulnerable and valuable sources of information about you. Everything from emails with family members and emails with significant others to all sorts of other messages can be found by hacking into your email account. Changing passwords often and even setting up an extra layer of security where your phone will be texted before anyone can gain access to your email are great preventative measures that you can put into place which can impact the ability of your spouse to access information belonging to you.
Social Media is a huge source of potential evidence, good and bad, regarding your divorce. You should keep in mind that your ability to protect the social media use that you do engage in is important, but it is not unlimited. For example, you cannot delete photographs, videos, or posts that you make online once your divorce begins. This can be seen as destroying or tampering with potential evidence in your case. You should always check with your attorney first before engaging in anything having to do with evidence and social media use.
When you start to use social media a great deal, the question that you need to ask yourself ultimately is: "Is this worth it?" Meaning- does your use of social media for the good outweigh the potential use of social media information in a negative way? For many of you during your life, the answer to that question would be, "yes." For most of us using social media is a benign activity. However, if you get involved in a divorce case that question may not be answered the same way. You should consider your social media behavior and its advantages and disadvantages. Almost certainly during the divorce itself, you should not use social media unless necessary.
On a different note, family law attorneys across the board are saying that social media use and misuse are becoming more frequent causes of marital problems that sometimes lead to divorce. We see this at our office, as well. Your spouse may have become more active on a social media platform, found some old friends, and then one thing leads to another. Social Media can trick people into thinking that their behavior is all online when it often spills over into the "real world." Don't fall victim to this thought yourself. You can act on a personal level to stop acts from occurring that may put your marriage in jeopardy. Take from us- it is easy to fall into the trap of marital infidelity when social media is a part of the equation.
Rules of evidence as they apply to digital information
When you find information online and want to provide it to a court as evidence, you or your attorney must offer it as evidence in a hearing or trial. Authenticity is important in this regard. Authenticity means- is this document/message/photo the real thing? Next, relevance would be an important consideration. Does the introduction of that evidence tend to make the existence of a fact probable based on its admission? Authenticity can be difficult to prove in some situations, but relevance isn't usually too hard to argue.
Proving authenticity is something that attorneys will frequently overlook as they prepare for a hearing or trial. Using an outside witness to testify to a document/photo/video’s authenticity is important. Circumstantial evidence or public records can also be used to help authenticate a document or other piece of potential evidence. You can also compare previously authenticated documents/photos with the current document/photo to prove authenticity.
The digital world can be tough- make sure you have an advocate
Currently, divorce cases are taking on another dimension as our digital lives start to bleed over into our real lives. If you are a very “online” person or your spouse is, then you need to be prepared for the added element of collecting, analyzing, and then admitting digital evidence in a divorce case. Having an experienced family law attorney can help put you on a solid course for success in this regard.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.