Spring 2017, Issue 2

Six Steps to Protect Your Client’s Digital Privacy in Divorce

“Clinton aide Huma Abedin has told people she doesn’t know how her emails wound up on her husband’s computer”—Washington Post1

Digital privacy was the big story in this year’s presidential elections, from claims of Russian hacking to the inadvertent sharing of classified information. As family law attorneys, we know how important it is to protect our clients’ digital privacy, especially where spouses share computers, cell phones, and cloud services. A good example of the danger is illustrated by the 2015 case In re Marriage of Evilsizor & Sweeney, 237 Cal. App. 4th 1416, 1425-27, where the court held that disseminating embarrassing information that husband had downloaded from wife’s cell phone amounted to abuse. Family law attorneys will recognize its facts as not unusual. In Evilsizor, husband claimed he had regular access to wife’s phones for the purpose of taking pictures, sending e-mail, text messages, browsing the Internet, or using applications, and that the phones were not password protected. He also claimed that wife gave him the password to her e-mail account so that he could send e-mails for her and have full access to her e-mail. Whether or not the information was legally obtained, the court applied In re Marriage of Nadkarni, 173 Cal. App. 4th 1483, 1498 (2009), finding that the dissemination of the material, when he attached texts as exhibits in a Request for Order, was abusive under the DVPA. The husband in Evilsizor may also have been guilty of a misdemeanor if he had been using software to track his wife. Cal. Penal Code § 637.7. This case raises some interesting questions. Would the result have been different if the texts had been submitted under seal? What if the incriminating evidence had been child pornography in a custody case? Did the court have the power to exclude consideration of such evidence?

Here it is important to draw a distinction. This article is not about destroying or concealing electronically stored evidence (“ESI”) stored on computers, storage devices, or the cloud. A review of the obligations to disclose and to preserve electronic evidence is beyond the scope of this article. However, practitioners should be aware of the 2009 Electronic Discovery Act and the California State Bar’s Formal Opinion 2015-193 on an attorney’s ethical duties in handling ESI. These rules on the preservation and discovery of ESI do not mean that a litigant gives up all rights of privacy. It is submitted that it is perfectly acceptable to take reasonable steps to prevent a spouse from getting access to another’s private digital information without clear and informed consent, a court order, or the use of a legitimate discovery request. The following is advice that one can give to clients. If in doubt, the common theme is “back up and replace.”

  1. Get a new computer. If you have ever shared a computer with your spouse or they have had access to it, there may be spyware or monitoring apps on the computer that allow a spouse to monitor the other’s usage and location history. These days it’s often less expensive to buy a new one than have an IT expert sweep the computer.
  2. Erase your digital history on a shared computer. If you are forced to hand over a joint computer or a computer that has ever been used by your spouse, make a backup onto a hard drive of all your data and then clear all your passwords and auto-fill history. Clear the web browser history so your spouse cannot automatically log in to your email, social media, or other accounts. This can be a problem in family run businesses, particularly if one spouse has installed employee monitoring software. You are strongly advised to let an IT expert erase all traces of your personal usage and passwords.
  3. Buy a new phone and plan. Your spouse may have placed tracking or monitoring software on your phone or more innocently still have access to cloud backup sites (such as iCloud) which automatically back up your phone. Back up your current phone; then change all passcodes, passwords, thumbprints, or other security in place. Better yet buy a new phone and de-activate automatic cloud backup sites. Otherwise your spouse can monitor your call logs and text messages.
  4. Back up and de-activate all social media accounts such as Facebook, Twitter, Instagram, LinkedIn, etc. Most social media sites such as Facebook allow you to download all of your posted content but you must do this before you de-activate your account. After backing everything up, de-activate and do not use any such sites.
  5. Change and create new strong passwords for all accounts—particularly email accounts. A new strong password will prevent your spouse or others from accessing your email accounts. A strong password is at least eight characters long, contains uppercase and lowercase letters, numbers, and special characters like “!@#$%^&*().”
    HINT: Do not use a password that can be found in a dictionary as most password cracking software use words found in the dictionary to quickly discover weak passwords.
  6. De-activate any shared or joint phone plans or other joint online services. This is worth repeating. De-activate your Apple iCloud settings, or Google cloud settings. If you must, create a new iCloud or Google Cloud account but understand private information and documents may automatically be uploaded to sites to which your spouse has access.

Unless you are computer savvy, it’s a good idea to have an IT specialist assist you.

1 Matt Zapotosky, Tom Hamburger & Karen Tumulty, Clinton Aide Huma Abedin Has Told People She Doesn’t Know How Her Emails Wound up on Her Husband’s Computer, Wash. Post (Oct. 29, 2016), https://www.washingtonpost.com/world/national-security/clinton-aide-huma-abedin-has-told-people-she-doesnt-know-how-her-emails-wound-up-on-her-husbands-computer/2016/10/29/1d30c2b8-9e15-11e6-a0ed-ab0774c1eaa5_story.html?utm_term=.dda82b7afb9c.