Electronically-stored information, devices & social media: do’s and don’t’s—a needed reminder for us all!
In May 2017, we blogged about the “Do’s and Don’t’s” in Family Law. With the pandemic forcing most of us to live a “virtual life”, we thought it was important to revisit and update what you should and should not be doing on the Internet.
Emails, text messages, websites and applications that enable users to create and share content or to participate in social networking (“social media”), or any other type of information that is created, used, and stored in digital form, and requires a computer or other device for access is collectively referred to as electronically-stored information or ESI.
While texting, chatting, social media postings of photographs, videos, and other digital forms of messaging have become the way to communicate in the 21st century, if you are going through any form of domestic dispute, then you must understand the impact these communications may have on your case. It is also important for you to understand what responsibility you have to preserve ESI, and whether you can access your spouse’s ESI. If you have any form of a domestic dispute with another person, whether it involves claims for divorce, child custody, child support, separation from your spouse, spousal support (post-separation support and alimony), property division (equitable distribution), domestic violence or alienation of affection or criminal conversation, it is paramount to know the rules in order to protect yourself and to ensure that you follow the law on access of ESI.
COMPUTERS:
If ALL four of these are true: 1) you are living with your spouse; and, 2) your spouse has given you his/her password; and, 3) the computer is marital property; and, 4) owned by your spouse and not a business; then you can permissibly gain access to the computer and its contents. Download and copy any relevant materials.
DO NOT under any circumstances whatsoever install any spyware. It is illegal. Any information you obtain from such illegal download is not useable in court proceedings, except in the criminal case against you!
If your spouse has changed his/her password and has not given you the new password, you may not “guess” and thereafter use the information discovered. INSTEAD, the best practice is to authorize your attorney to send a preservation letter to your spouse and seek a subpoena for the electronic device or computer.
If your spouse has never given you his/her password, you may not “guess” the password. This is true for access to the computer contents, or opening of your spouse’s emails, if the email account is password protected. Any information you obtain by hacking into a computer is not useable. It also violates North Carolina law.
If your spouse’s computer is not password-protected to open it but the email account IS password protected and you have never been given the password or permission to use the email account, you may not open your spouse’s email account. Any information you obtain may not be useable. It also violates North Carolina law.
If your spouse has a work-issued computer (including your spouse’s individual business), you MAY NOT access the internal information even if you know the password. You MAY NOT authorize a forensic expert to image the hard drive. INSTEAD, the use of subpoenas or court orders may be necessary to gain legitimate access to the internal information. If you access your spouse’s work-related computer or gain access to its contents without authorization, you are in violation of North Carolina law.
If you want to keep your spouse out of your computer, then change your passwords. Create a new, strong, password, 8 to 12 characters. The password should be entirely new, not a variation of a regularly used password. Encrypt data. This makes access harder; not impossible.
Create a new personal email address, separate from your work email address, and separate from any previously used personal addresses. Password protect your email account. Keep the password confidential.
SMART PHONES: (remember they are computers too!)
If ALL four of these are true: 1) you are living with your spouse; and, 2) your spouse has given you his/her password; and, 3) the smartphone is marital property; and, 4) owned by your spouse and not a business; then you can permissibly gain access to the smartphone and its contents.
DO NOT under any circumstances whatsoever install any spyware. It is illegal. Any information you obtain from such illegal download is not useable in court proceedings, except in the criminal case against you.
If your spouse has changed his/her password and has not given you the new password, you may not “guess” and thereafter use the information discovered. INSTEAD, the best practice is to authorize the sending of a preservation letter to your spouse and seek a subpoena for the electronic device or computer.
If your spouse has a smartphone that is issued by a business, or if cell or data service is paid for by your spouse’s business (including your spouse’s individual business), you MAY NOT access the internal information even if you know the password. You MAY NOT authorize a forensic expert to image the hard drive. INSTEAD, the use of subpoenas or court orders may be necessary to gain legitimate access to the internal information. If you access your spouse’s work-issued smartphone or gain access to its contents without authorization, you are potentially in violation of North Carolina law.
If the smartphone you now use was a gift to you from your spouse (or other third party); be wary, especially if your spouse seems to know too much about your movements, whereabouts, or activities. It may have spyware, locator services, GPS, or other monitoring applications enabled. Do not destroy the smartphone but no longer use that smartphone. Purchase another mobile device yourself and obtain your own service plan. Give your gifted smartphone to your lawyer for forensic examination; however, spyware is stealthy so it can be very difficult to find.
On your service plan and/or in your “settings,” make sure your “location services” ARE NOT enabled. Set GPS to “911” only. Create a strong, 8 to 12-character, new password (not a variation of a regularly used password) for your smartphone and your cell phone account.
Mobile devices are commonly out in the open; sitting on dining tables; on bar countertops; on the dresser; in a person’s lap. These devices may be in “record” mode and recording your entire communication but there is no visible sign that the recording is taking place. REMEMBER: No conversation is private anymore. ALSO REMEMBER: North Carolina is a one-party consent state meaning that only one party to a conversation has to have knowledge of its recording for the recording to be admissible against you.
Phone-embedded location applications, like “find my iPhone”: If your spouse has given you the access information (login, password), and if your spouse has enabled the location services setting, and if the settings are still enabled, you may track your spouse’s phone. However, you must not take any action yourself to toggle any of these features on/off, to download any application, or to do anything whatsoever with the smartphone. If you have not been given access information by your spouse, you may not guess. PLEASE CONSULT WITH YOUR ATTORNEY ABOUT THE SPECIFIC CIRCUMSTANCES IN YOUR CASE PRIOR TO “TRACKING YOUR SPOUSE’S PHONE, AS DOMESTIC VIOLENCE PROTECTIVE ORDERS OR OTHER “CYBERSTALKING” LAWS MAY PREVENT YOU FROM TRACKING YOUR SPOUSE’S PHONE.
Home Networks: (See also Cloud Storage below.) Your home may be equipped with a Cloud-based shared home network. Information that is stored in the cloud in the shared home network is accessible and useable so long as it is a shared network with a common password. Anytime an electronic device connects to your home’s wireless or electronic network, a unique identifier attaches. It may be possible to determine the identity of other devices that connect to the home network.
Synced Devices. Some devices are synced together so that the texts or emails, for instance, that you receive or send on your smartphone also appear on your linked tablet. Password protect your tablet or any other linked device, and disengage the link feature. For Apple products, this is located in Settings/General/Handoff.
SOCIAL MEDIA:
Twitter.
Your account: Close your twitter account. Do not delete the contents; only close the account. Do not tweet. Regardless of privacy settings, those tweets you think are private between you and another individual are not.
Your spouse’s account: Check your spouse’s twitter feed. Download or copy any posts that could be potential evidence. You may not pretend to be someone else and follow your spouse; any information obtained by a poser is probably not useable in legal proceedings. You may not authorize another to do what you cannot do.
Instagram (etc.): Same as for Twitter, above. Be very aware of any photos, videos or images that others may take of you.
Facebook.
Your account: Close your Facebook account. Do not delete the timeline, the contents or any post. Deleting information is potentially destroying evidence that you have a duty to preserve. But, cease all Facebook use. Questionable: The law in this area is evolving; it is not known at this writing whether de-tagging photos, videos or images others have posted of you could be considered “spoliation” and the destruction of evidence; however, depending on the content of the posted photo, consider the risk of de-tagging the offending image against the possibility of some later sanction. Consult your lawyer.
Your spouse’s account: Check your spouse’s Facebook wall and postings. Download or copy any posts that could be potential evidence. You may not pretend to be someone else so that you can friend your spouse; any information obtained by a poser is probably not useable in legal proceedings. You may not authorize another to do what you cannot do. However, if a third party is your spouse’s friend (or your spouse accepts a friend request legitimately made), and that third party has access to your spouse’s timeline, wall and/or postings, then with proper authentication any information discovered may be useful. De-select notifications and locations for any “friend finder” sites like Four Square.
CLOUD STORAGE:
If you and your spouse share a cloud storage plan and if the login credentials are shared, you may visit the cloud and inspect your spouse’s electronic information. If you have a shared cloud with your spouse, go to Settings on your computer and smartphone and deactivate “family share” or other settings that permit other people from seeing your electronic information or location.
Please talk with your attorney about any questions you have about your obligation to preserve your ESI or whether you can access your spouse’s ESI.
Portions of this handout were reprinted with permission from War of the Roses in the Digital Age, Part II, The Roses Go to Court. (North Carolina Bar Association Foundation, September 11, 2015)
