Electronic Spying and Tracking Spouses in

Divorce Cases: What’s Legal in the Digital World? Navigating the Legal and Ethical Challenges of Evidence Obtained Using Spyware,

GPS Trackers, Wiretaps, Webcams, Social Media Account Interception and More

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WEDNESDAY, SEPTEMBER 5, 2012

Presenting a live 90-minute webinar with interactive Q&A

Henry S. Gornbein, Attorney, Henry S. Gornbein, Bloomfield Hills, Mich.

Sharon D. Nelson, President, Sensei Enterprises, Fairfax, Va.

John W. Simek, Vice President, Sensei Enterprises, Fairfax, Va.

E.X. Martin, III, Attorney, E.X. Martin, III, Attorney at Law, Dallas

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Presented by Sharon D. Nelson, Esq.,

and John W. Simek www.senseient.com

snelson@senseient.com jsimek@senseient.com

703-359-0700 3975 University Dr., Suite 225

Fairfax, VA.

Strafford Publications September 5, 2012

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From the Headlines: Sherri Peak of Seattle

• Husband bought cell phone and GPS tracker • Attached both to car battery • Wired into electrical system so he didn’t have

to charge batteries • Phone ringer on silent so he could call (auto

answer) and listen to her in-car conversations • Hid the GPS tracker • Spyware on spouse computer • Husband spent 8 months in jail convicted of

felony stalking

ELECTRONIC SPYING AND

TRACKING SPOUSES IN

DIVORCE CASES What’s Legal in the Digital World?

Navigating the Legal and Ethical Challenges of Evidence Obtained

Using Spyware, GPS Trackers, Wire Taps, Web Cams, Social Media

Account Interception, and More

Presentation By: Henry S. Gornbein

40900 Woodward Avenue, Suite 111

Bloomfield Hills, MI 48304

248/594-3444

DivorceSourceRadio.com

hgornbein@familylawofmichigan.com

Henry@divorceonline.com

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HEADLINES FROM THE NEWS THE STRANGE CASE OF LEON WALKER

Leon Walker was charged with hacking during his third divorce

in a Michigan case that made national headlines, and was featured on

Good Morning America, CNN, and other major news sources. The facts

are as follows:

• Leon Walker created the email accounts for himself and his wife.

• The computer was his. Note that these facts don’t matter, because his

wife’s e-mail was protected by a password.

• There were several computers in the house, including the laptop at issue.

• His wife lied that she did not use the computer, and he was charged with

unauthorized use of the computer.

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Mr. Walker forwarded some of the emails to Husband #1

regarding allegations of abuse of the child from her first marriage, and

the child that he and his wife had together. The first trial judge ruled

that the emails were admissible and one week later, after the judge

acquired the incriminating emails, Walker was arrested and charged.

After a torturous battle of approximately one and one half

years, the hacking charge was dismissed because the wife was found

to have spied on her husband’s phone text messages. All charges

were dismissed.

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Questions Raised by the Leon Walker Case:

1. Can you hack into a computer that is owned jointly? Yes,

because it is the privacy right that is protected.

2. When can you open email that is your spouse’s?

If it is password-protected, never unless you have consent of the

spouse or a court order that the e-mail be produced.

3. What about spyware or hardware keyloggers? One CA case

has found hardware keyloggers ok, but no one else has. Spyware in

divorce cases is always illegal under state and federal wiretap laws.

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Electronic Spying &

Tracking Spouses In Divorce Cases

What’s Legal In The Digital World?

E.X. Martin, III

Attorney at Law

8828 Greenville Avenue

Dallas, Texas 75243

(214) 343-7400

exmartin@airmail.net

Video Recording

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Recent Case Regarding Interception Nonconsensual Communications

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Admissibility of Wire and Electronic Communications Vicarious Consent

The Texas penal code addresses the unlawful interception of communications, stating that a person commits an offense if he intentionally intercepts a wire, oral, or electronic communication. Tex. Penal Code Ann. § 16.02(b)(1). The statute lists various affirmative defenses to prosecution under section 16.02(b), including the following: It is an affirmative defense to prosecution under Subsection (b) that: . . . . (4) a person not acting under color of law intercepts a wire, oral, or electronic communication, if: (A) the person is a party to the communication; or (B) one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act. Id. § 16.02(c)(4). The statute does not specify that consent can be given vicariously by a parent or guardian.

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In interpreting Sec. 16.02(c)(4)(B), Texas has joined a growing number of jurisdictions which recognize the Doctrine of Vicarious Consent, which allows a parent to consent to the recording on behalf of his or her child and secretly record the child without being part of the conversation as long as the parent has a good faith and objectively reasonable basis for believing the recording is in the child’s best interests.

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Ussery v. State Texas Court Of Criminal Appeals

Decided January 30, 2008 Unpublished Opinion

Recognizing that no Texas case had addressed a parent's authority to vicariously consent to the recording of a child's telephone conversation, the court looked to the Sixth Circuit's decision in Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), the leading case regarding the vicarious-consent doctrine in the context of the federal wiretap statute.(fn3) In upholding the trial court's decision that the parent had not violated the federal prohibition of wiretapping when she recorded conversations between her daughter and the plaintiff, the Pollock court held: [A]s long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording.

So what is the problem ? ?

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Webcam laws • Illegal in some states where people might

expect privacy or where nudity is revealed

• Sec. 18.2-386.1 in Virginia is pretty typical

• Placement in bedroom specifically mentioned

• Explicit photos

• Non-consenting person

• Includes still photos as well as any kind of video

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GPS tracking laws • In Virginia, you must have an ownership

interest in the vehicle to track it Section 46.2-1088.6

• Applies to lessee

• No laws in many states and a lot of variants

TYPES OF INTERCEPTION AND COMPROMISE SOCIAL MEDIA & THE INTERNET

There are some do’s and don’ts that I provide my clients with

regard to Facebook and other social networking sites that have a

substantial impact on divorce in my family law practice.

It is becoming a larger and larger issue in more and more

divorce and custody cases.

Social media sites are not only a source of information but a

cause for concern.

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The following are some do’s and don’ts that are worthwhile to

provide to your clients in the event of a divorce:

1. Do not post messages on Facebook. It is dangerous even if you

have tight privacy settings. You never know what one of your

“friends” may do with what you post. Be discreet.

2. Do not post photos of your boyfriend or girlfriend on the internet. I

have handled divorces where one of the parties has posted

Facebook pictures of boyfriends or girlfriends, even in the middle of

a divorce.

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3. Be careful what you are saying in e-mails or texts. Text messages

brought down the mayor of Detroit.

4. Compromising videos. Even videos that are shot during a marriage

can come to haunt you in the event of a divorce, especially if they

get in the wrong hands.

5. Gambling online is a form of addiction. I have had cases where

people have lost substantial sums of money that impact on a

divorce. Don’t. If you have a gambling problem, seek help.

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6. I have had cases with E-trading. Be careful.

7. Shopping online. People buy, and spend a lot of money on line.

8. Pornography. I have had many cases where computers are filled

with pornographic images.

9. I have had many cases where people have met online and been

involved in extra-marital affairs.

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10. People use credit cards for charges on adult sites, for

charges when they’re meeting people.

11. Watch your children. The internet can be very dangerous to

children with predators lurking everywhere.

12. Remember that even when you press the delete button, the

images remain on your hard drive and can be retrieved until

overwritten – and you never know when that will happen.

13. E-mail can be a treasure trove of information in a divorce.

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All states have computer crime laws which generally

say that you cannot gain unauthorized access to data even

if you own the computer or it is a marital asset. If a

password protects data, you cannot guess or crack the

password – or install spyware. If your client has done this,

you may have to advise them to “take the Fifth.”

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ISSUES REGARDING TELEPHONES

In Michigan, where I practice, you can record a telephone

conversation, as long as the person recording the phone conversation

is part of conversation. In some states that is illegal but this is the law

in Michigan.

SMART PHONES

The impact on texting is critical. Not only in divorce and

custody cases but even in domestic assault cases.

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• SPYWARE

Spyware is never legal in divorce cases – make sure your clients

understand how serious the consequences can be. Some clients become

addicted to watching what their spouse is doing. You cannot continue to

represent them if they will not stop because you then become part of the

deceitful conduct.

GPS TRACKING

A recent law in Michigan states that individuals cannot put a GPS

Tracking device on another person’s car but a private investigator or police

official can.

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Federal Criminal Laws

Defense Not unlawful for a person not acting under color of law to intercept a communication where such person is a party to the communication.

18 U.S.C. § 2511. Interception & disclosure of wire, oral or electronic communications prohibited !!! Punishment – Not More Than 5 years.

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Hi Tech Demonstrative Evidence Digital Audio Recorders

Sony Digital Voice Editor Software Interface

Sony MX20

Can Make Clients Be Nice !!!!!

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Can’t Wish It Away ! Can’t Wash It Away !

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Texas Criminal Statutes

§ 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS.

A Person Commits An Offense If: 1. Intentionally intercepts, endeavors to intercept, or procures another person to intercept a wire, oral, or electronic communication. 2. Intentionally discloses to another person the contents of electronic communication if the person knows the information was obtained through an illegal interception. 3. Intentionally uses or endeavors to use the contents of an electronic communication if the person knows or is reckless about whether the information was obtained through an illegal interception. 4. Knowingly or intentionally effects a covert entry for the purpose of intercepting a wire, oral, or electronic communication without court a court

order. 33

Affirmative Defense

It is an affirmative defense to prosecution where a person not acting Under color of law intercepts a wire, oral, or electronic communication if: (A) The person is a party to the communication, or

(A) One of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act.

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Keeping spouses out of computers and laptops

• Strong password

• Encrypt data

• Biometric access

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What is spyware?

• Definitions vary. Generally, it is:

– Surreptitiously installed

– To monitor a user’s conduct

– Transmitting data to or holding it for a third party

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Hardware Keyloggers

• KEYKatcher

• KeyGhost

• KeyLlama

• No software

• Requires physical access

• Stores keystrokes to flash memory

• U.S. v. Ropp, 2004, U.S. Dist. Ct. in L.A.

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Spyware and stalking go hand in hand • If they’re watching, they know where you are

• Makes stalking frighteningly easy

• Show up at lawyer’s office, lover’s home, etc.

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How do you get spyware that records computer activity

installed on your machine? • Someone installs it on your machine

directly because they have access to it

• It is remotely installed by someone, usually via an e-mail attachment

• You open an e-greeting card

• Links from websites

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E-mail says: “Honey, I can’t apologize enough

for my inexcusable behavior recently. I’ve

attached a card to tell you how I really feel

inside.”

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How do you get spyware that records computer activity?

• You open a photo of your children

• Most folks simply can’t resist this technique

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E-mail says: I just thought you might like to

see the attached photo of the girls in the new

summer outfits I bought them last night.

Aren’t they adorable???

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How do you know if monitoring software is installed?

• You don’t – unless an anti-spyware program picks it up, and that’s a gamble

• Spyware generally operates by stealth • It doesn’t show up in Programs • You can’t see it when you go to Add/Delete

Programs • In fact, you never see it • It changes the date of install after it’s installed • It changes its own name, usually to something

innocuous like systemchk.dll • In most cases, it takes forensics to find spyware

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What do we regularly see?

• Specter Pro

• eBlaster

• The others, far less

• Cost to find and document: generally between $3000-$5000

• Can we always tie it to the guilty party? No

• In about 2/3 of our cases, the e-mail address to which the report is transmitted has been found

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Software to protect against spyware

• There is no silver bullet

• 2-3 programs recommended

• Only use 1 to actively scan (Internet Suite)

• You can still get spyware

• You must manually scan periodically

• Safe computing is still important

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What if your client installed/used spyware? • Tell them to stop (duh) • They may have to take the Fifth

in deposition or in court • You cannot be a party to their

deceitful conduct • However, the client may make

suggestions which would be helpful to a private investigator

• In 2010, TN law firm sued for $2 million for allegedly using spyware evidence in a divorce proceeding

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What if your client was the victim?

• This is the ace of trumps

• Spend the money and document it

• Make sure your client has machine cleaned thereafter and changes all passwords

• Ask questions in deposition from which there is no retreat – get them on record

• Be careful – a substantial minority of people believe that spyware has been used when it has not

• Remember, some people simply crack passwords – also illegal!

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Is it ok to monitor children? • Yes, but spouse should be told

• Cannot use this excuse to monitor spouse

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Smartphone Spyware

• Big rise in volume

• People text from phones

• Phones are always with them

• How does spyware get on your phone?

• Tell client – never leave cell phone unattended or loan it to someone

• Mobile Spy and FlexiSpy seen most often

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Never let a client accept a smartphone as a gift

• Pre-installed with spyware

• They won’t know

• Will transmit all texts and e-mails

• Will call installer when making a call to listen in

• Can listen in even when on a restaurant table

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What to tell clients

• Call cell provider and make sure location services are not enabled

• Make sure they have their own password-protected cell phone account

• Set GPS to 911 only • Violence Against Women Act of

2005 (now stalking can include use of GPS)

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Stolen smartphones • Common to receive stolen

smartphones • Certify in writing that it is theirs

(or marital property) and that they have the legal right to freeze the data

• Searching data? • Without PIN, the phone is “open” • With PIN, court order or consent

required • Law enforcement uninterested

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Can Spouse Authorize Forensic Imaging?

• Yes, provided it is marital property

• There are NO reported court cases, but no court has yet failed to let evidence in or has raised an objection to it

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GPS trackers - $99-$500, battery powered, average 10-50 days

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What can GPS trackers tell you?

• Can pinpoint location

• Can show the whole route

• Detailed activity reports

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What can GPS trackers tell you?

• Alerts – Arrival at defined address

– Departure from defined address

– Notification if vehicle moves

– Notification if a vehicle does not move by a pre-defined time

– Operation at odd hours

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GPS Web trackers

• Man who put tracker on top of car • Mechanics often find them and point them out to

the victim • Good idea to look around car once in a while • Usually are tipped off because the other party

seems to know too much • Your cell phone can also be a GPS tracker

– Verizon (Family locater) – Sprint (Family locater) – Can buy a cell phone, register for GPS service and hide

it in spouse’s car

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Webcams

• Do you know if the other party is recording?

• Today’s boyfriend/girlfriend is tomorrow’s worst enemy

• Easily hidden, often wireless

FACEBOOK AS EVIDENCE

In 2010 and 2011, Westlaw revealed 689 published

cases involving social media. In any divorce or other legal

proceeding the key is that Facebook entries, You Tube

videos, email exchanges, tweets, texts, and picture posts,

that a client might have considered private, are

discoverable and can be useful in a legal proceeding.

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1. The first issue is proper authentication due to the possibility of

alteration, or that the communication was counterfeit.

2. The next issue is relevance.

3. The third issue is that if you are trying to offer it into evidence,

you must show that the posting, photo, or other information was

done by the particular person or entity who you claim it was

posted by.

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4. Has the person or entity shared the password with any other

person or entity?

5. Show whether the person or entity profile contains identifiable

personal information, including birthdates, photographs, and other

unique or known information about that person or entity.

6. Discovery Interrogatories should be sent to determine what

sites, if any a party uses, the i.p. address, the user names, and the

passwords.

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Another discovery method can be to have the opposing parties

sign an authorization to provide access to that parties social media

profile. Facebook has recently added a feature allowing users to

download each and every activity from account opening to the final

status update to a zip file.

There are cases going in different directions regarding whether

passwords should be turned over so that a party can make sure they

are obtaining all of the requested content.

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The best interests of the child is almost universal

regarding custody and parenting time. Suspicion of abuse,

compromising photos, inappropriate activity that shows up

on Facebook are all fair game.

An example is the case of Elissan v. Lanb, Op.

51339(U), NY Family Court Monroe County (April 7,

2011). In this case, the mother used Facebook and blogs

to rant about her ex-husband.

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These inappropriate photos clearly were evidence and had

bearing on the court’s decision that the mother was a less fit parent

than her ex-husband.

There are cases across the country that have addressed the

issue of social media content. The cases involved concluded that a

profile or post from a party or witness that is public information is fair

game. See: NY Comm. Prof’l Ethics Op. 843 (9/10/10).

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Another issue is that a lawyer should not use assumption or

trickery, such as friending a person under false pretenses to gain

access to private information. See: Philadelphia Op. 2009-02; Assoc.

of the Bar of New York, Op. 2010-(2).

The use of social media as evidence is a growing field with

technology far outpacing the law at this point.

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§ 16.06. UNLAWFUL INSTALLATION OF TRACKING DEVICE Texas Penal Code 16.06

A person commits an offense if the person knowingly installs an Electronic or mechanical tracking device on a motor vehicle owned Or leased by another person.

Affirmative Defense: Obtained consent of the owner or lessee of the Vehicle before installation or was a peace officer with court order. Class A Misdemeanor

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Parties To Divorce Proceedings Have Been Prosecuted & Convicted Under § 16.02

Neither the Texas Penal Code nor the Federal Wiretap Statutes contain an exception for wiretaps between spouses. ****Party to a divorce in Collin County Texas has been arrested, tried, and convicted of unlawful interception of an electronic communication. See: Duffy v. State, 33 S.W.3rd 17 (Tex.App.-El Paso 2000)

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Admissibility Of Tape Recorded Evidence

Before tape recordings can be excluded from evidence, the objecting Party must show that their exclusion is required under either the federal Or state statute. Practice & Remedies Code does not specifically provide For the exclusion of illegally obtained evidence in a civil lawsuit.

Collins v. Collins, 904 S.W.2nd 792 (Tex.App. – Houston [1st Dist.] 1995)

Held that tape recorded conversations were not admissible because the Criminal statute dealing with the use of the intercepted communications Criminalizes their dissemination, and the civil statute provides a method To prevent dissemination. To permit such evidence to be introduced at Trial when it is illegal to disseminate it would make the court a partner To the illegal conduct the statute seeks to proscribe.

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Crimes Targeting A Specific Computer Or Network

Breach Of Computer Security - §33.02 Texas Penal Code

Hacking !!!!!

A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner. Class B Misdemeanor – unless in committing the offense the actor Knowingly obtains a benefit, defrauds or harms another, or alters, Damages, or deletes property.

Class A Misdemeanor To 1st Degree Felony

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Invasion Of Privacy

Supreme Court of Texas Texas State Employees Union v. Texas Dep’t of Mental Health & Retardation

746 S.W.2d 203 (Tex. 1987)

Held: The Texas Constitution protects personal privacy from unreasonable Intrusion and guarantees the sanctity of the home and person against unreasonable intrusion.

Thomas v. Allsip 836 S.W.2d 825 (Tex.App.—Tyler 1992, no writ)

Complainant must show: 1. Conduct in the nature of an intrusion 2. Private nature of the place intruded upon 3. Intrusion was substantial and conduct highly offensive to a reasonable person.

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Texas Civil Practices and Remedies Code Sec. 123.002 This statute creates a civil cause of action for interception “without the consent of a party to the communication.” “Communication” is defined as, “speech uttered by a person or information including speech that is transmitted in whole or in part with the aid of a wire or cable.” Sec. 123.001. A person who establishes a cause of action under Sec. 123 is entitled to: (1) an injunction prohibiting a further interception, attempted interception, or divulgence or use of information obtained by an interception; (2) statutory damages of $10,000 for each occurrence; (3) all actual damages in excess of $10,000; (4) punitive damages in an amount determined by the court or jury; and (5) reasonable attorney's fees and costs.

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Online Impersonation – Texas Penal Code § 33.07

It is a 3rd Degree felony if a person without obtaining consent And with the intent to harm, defraud, intimidate, or threaten Any person, uses the name or personal data of another person to: (1) Create a web page on a commercial social networking side or other Internet website; or (2) Post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

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A life is only important in the impact it has on others.

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