Electronic Spying and Tracking Spouses in Divorce: Admissibility and - - PowerPoint PPT Presentation

Electronic Spying and Tracking Spouses in Divorce: Admissibility and Privacy Issues

Navigating Evidentiary Issues With Spyware, GPS Trackers, Cell Phone Forensics, Wiretaps, Social Media and More Today’s faculty features:

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TUESDAY, MAY 7, 2013

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, Law Offices of E.X. Martin, 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

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Catherine and Joseph Zang –

• Oct. 2012

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Catherine filed suit in federal court

• Alleged that he:

– Installed a hidden video camera and mic – Installed spyware on her computer – GPS tracker in car

• Also sued Joseph’s lawyer who

said she had evidence that would portray her in “unflattering, embarrassing manner”

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Danny Lee Hormann – 2010

• GPS tracker on ex-wife’s car (ruled
• k – he was partial owner)
• Spyware on phone and computer
• She and children searched garage

for cameras and whispered together on the lawn

• Sentenced to 30 days for stalking

Electronic Spying and Tracking Spouses in Divorce: Admissibility and Privacy Issues

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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Indiana – David Voelkert

• Charged with intercepting oral

communications of wife

• “Confessed” to 17 year old girl
• n FB that he had GPS tracking

device on wife’s car

• He knew it was wife or friend

and signed a notarized affidavit when he got the friend request

• Charges dismissed

Electronic Spying and Tracking Spouses in Divorce: Admissibility and Privacy Issues

E.X. Martin, III

Attorney at Law 8828 Greenville Avenue Dallas, Texas 75243 (214) 343-7400 exmartin@airmail.net

September 2012

• Lawyer Mary Nolan indicted
• Hired a PI to install listening

devices in cars of her clients’ spouses – she and staff listened to glean info

• Six charges of wiretapping and

tax evasion- pled not guilty

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August 2012 – Changes to the Model Rules of Professional Conduct

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The tech-related changes

• “Competence” (Rule

1.1) now means that you must be competent with technology

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Maintaining The Integrity Of The Profession Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in

• ther respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

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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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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State laws

• Nearly all are identical to federal law
• Most but not all have exclusionary clauses

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National Conference of State Legislatures Guide to Electronic Surveillance Laws

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Recording Telephone Conversations Two party consent states: California, Connecticut, Delaware, Florida, Maryland, Massachusetts, Nevada, New Hampshire, Pennsylvania, Vermont, Washington, Illinois All other states are one party consent states by statute or case law

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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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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

• bjectively 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

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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
• n 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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Finding smartphone spyware - iPhone

• Has the phone been

jailbroken?

• Can’t get it on without

jailbreaking

• If jailbroken, expert will look

for iPhone spyware

• Amateurs won’t find it

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Finding smartphone spyware - Androids

• Apps in Playstore have

hopefully been vetted

• See if phone is configured

to allow sideloading

• If so, same drill looking

for Android spyware

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Must have possession of smartphone

• In order to install spyware
• Remote installation not possible - YET

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Cellebrite UFED Touch

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File The Motion, Get The Discovery, Win !!!!!

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Cellebrite Physical Analyzer & Extraction Software Interface

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Cellebrite Physical Software Extraction Summary

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Calls From Justice Moseley

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66 Attorney David Pire

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67 MMS Messages – Messages That Include Multimedia Content

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iPhone Embedded GPS / Geolocation Data

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Locations – Exported As KML File To Google Earth

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Cell Phone Forensics For Criminal Defense Attorneys

• E. X. Martin – Dallas, Texas

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Video Recording

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Recent Case Regarding Interception Nonconsensual Communications

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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
• ther party is

recording?

• Today’s

boyfriend/girlfriend is tomorrow’s worst enemy

• Easily hidden, often

wireless

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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

• verwritten – 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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• SPYWARE

Spyware is never legal in divorce cases – it is illegal under both the federal wiretap law and state wiretap laws. 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

The laws are all over the map from state to state – there is no federal law except respecting law enforcement.

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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 IP 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

• n 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.

• f 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

• ccurrence;

(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

• r 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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