These days, technology issues and family law go hand in hand. Frequently, family law practitioners are told by their clients that they have procured the “smoking gun” piece of evidence. If the client found the content on their spouse’s phone, computer, or social media, then the practitioner must determine the “how” before using this information. The “how” will not only determine potential admissibility at trial, but also can avoid criminal implications.
An in-depth understanding of two key federal statutes is not just beneficial; it’s crucial. The Computer Fraud and Abuse Act, Title I of the Electronic Communications Privacy Act (EPCA), and Title II of the EPCA – the Stored Communications Act, play a significant role in using technology in evidence gathering. For instance, the Computer Fraud and Abuse Act prohibits the intentional access of a computer without authorization, which could include unauthorized access to online accounts like e-mails or social media accounts. Simply put, unauthorized access to a spouse’s personal computer or phone is criminal. Therefore, it’s not just advisable; attorneys must be well-versed in the Act to be informed and prepared for any legal implications.
The Electronic Communications Privacy Act regulates intercepted electronic communications and unauthorized access to communications. The Act specifically does not provide “interspousal immunity” because, as a fair number of courts have concluded, each spouse has an individual expectation of privacy. Furthermore, New Hampshire’s Wiretapping and Eavesdropping statute, RSA 570-A, protects the individual’s right to privacy to a greater degree than many other states and the federal law because unless all parties consent to the interception (said differently, all parties are aware that their conversation is being recorded,) the person who records the conversation is committing a crime.
Title II of the ECPA is the Stored Communications Act. This covers intentional, unauthorized access to electronic communications, such as e-mails or other messages held by service providers. Title II also criminalizes intentionally exceeding authorization. An example is being allowed to use a spouse’s computer, but then access their email. Title II does not apply to “electronic communication [that] is readily accessible to the general public.” In the context of family law, a distinguishable example is when the parties to a divorce run a business together. A party acting as a systems administrator is entitled to monitor accounts that are a part of the system and this does not violate Title II. Additionally, screenshotting a public Facebook post is not a violation of Title II, but accessing private messages through Facebook would be. An attorney should also be aware that Title II does not criminalize receiving information from a third party who had access to the information and voluntarily provided it. The difference is being passively notified and not actively seeking out the information. If the client is blocked by their spouse on social media, it is not advisable for the client to ask another unblocked family member or friend to get the content.
It’s also essential to understand the use of technology in relation to the New Hampshire statutes for stalking, RSA 633:3-a, and harassment, RSA 644:4. There is an abundance of applications and devices that clients can use that may qualify as stalking or harassing a partner. Lawyers should be wary of evidence of clients showing Apple Air Tag details, Life360 monitoring, or GPS tracking of a personal vehicle. However, GPS tracking of a co-owned vehicle is a different story. The problem with this technology is that it pinpoints a person’s location, provides alerts for arrivals and departures of a destination, and gives detailed activity reports. This type of “Big Brother” surveillance during a separation would put most people in fear for their personal safety. The continued tracking of a partner could violate RSA 633:3-a or RSA 644:4, but so could making social media posts that include the partner.
Take, for example, the Michigan case ARM v. KJL, 342 Mich.App. 283 (2022) the court found the respondent had violated a stalking petition by repeatedly “tagging” the petitioner on his Facebook profile. If a client continually “tags” the partner in such a manner, it is repeated communication at extremely inconvenient hours for the purpose of annoying or alarming.
At the outset of the case, an attorney should discuss these technology issues with clients for their protection. Here are some simple ways to do so:
- Advise your client to change email or social media account passwords. This will remove the partner’s ability to argue that they had authorization to access the accounts.
- Separate cellphone accounts. The likelihood of an expectation of privacy of a shared account is far lower than that of an individual account.
- Have the client’s personal computer checked to ensure that it has not been compromised.
- Make it clear that the client should not post about their spouse on social media. These posts will likely be used against them at a later hearing.
- If your client is in a new relationship, posting about the relationship can lead to a claim of adultery brought by the opposing party. You will be forced to untangle that web.
- Advise the client not to create a fake account so they can interact with their spouse.
- Don’t post videos on social media of the spouse.
- Do not delete earlier posts; this can be considered destruction of evidence.
- Finally, limit texting or other electronic communications. All of these communications can be used against your client.
Technological evidence certainly has its benefits. Family law practitioners frequently use text messages and social media posts as evidence in hearings. However, a lot more work must be done to ensure that the evidence was not obtained by criminal means. Attorneys should take time to review what is being received and question how a client got the information.