Digital Evidence in Divorce: Avoiding Unlawfully Obtained Evidence

March 30
Written by Kenneth W. Jacobson, Esquire

Perhaps you suspect your spouse in cheating, or hiding assets, or both.  Perhaps, you have discovered your spouse has a secret life you knew nothing about.  Maybe your spouse has been in charge of the family’s finances for years, and you feel as though you have been kept in the dark and want to know what has been going on with the family funds.  Even if you do not suspect your spouse of wrongdoing, there may come a time when you feel the need to do some digging into what has really been going on in your marriage, or with your family finances.  If that time ever comes, it is important to ensure you obtain information lawfully. It is important to know that most of this information can be obtained legally by your counsel simply by making a request for formal discovery.  

The last thing your divorce attorney will want to see from you is illegally obtained proof of your spouse’s wrongdoing.  Your attorney has an obligation to determine how you obtained information such as documents and audio or video files, so as to ensure that you have not inadvertently or unknowingly obtained this evidence illegally.  This can be especially complicated when the documents you obtain are from a family computer. If your attorney does not know how you obtained evidence, they may unwittingly allow you to incriminate yourself if and when you are asked how you obtained the evidence at trial.  Your attorney SHOULD be asking you how you obtained evidence.

Virginia’s Rules of Professional Conduct, Rule 8.4 states, in relevant part, that “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 or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law….

Attorneys may not themselves obtain evidence illegally. They cannot circumvent this rule by having their client obtain evidence illegally. Even if the client acts independently, and without the knowledge of the attorney when obtaining evidence illegally, attorneys still may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Knowingly submitting evidence illegally obtained will risk the attorney being deemed complicit in the dishonest acts that were necessary to obtain the discovery.  It could further be argued that counsel is acting as an accomplice after the fact should they attempt to introduce illegally obtained evidence.  

Unlawfully obtained evidence creates enormous difficulty when it comes time for discovery, particularly when your spouse requests disclosures regarding what evidence you have that supports your case.  Moreover, if your attorney discloses and/or attempts to use the evidence which you have unlawfully obtained, the opposing party may end up filing a motion seeking sanctions against you and/or your attorney, including a request that the Court not permit the evidence unlawfully obtained be used at trial.  They would certainly request monetary sanctions and/or attorney’s fees against you. Worse still, your spouse, upon learning that you illegally obtained evidence to use against them, might seek to bring civil or criminal charges against you.

So what is unlawfully obtained evidence?  It would be nearly impossible to detail every way that a person could violate the law in order to obtain evidence of a spouse’s wrongdoing. Most people know you cannot open your spouse’s sealed mail, but what about their e-mail? What about the evidence obtained from a shared family computer, phone, or tablet? Federal and state laws protect some of the information access through these devices. Two of the most relevant statutes are The Computer Fraud and Abuse Act, codified in 18 U.S.C. 1030, and the Stored Communication Act, codified in 18 U.S.C. 121.

The Stored Communications Act makes it illegal for anyone to intentionally access, without authorization, or in excess of authorization, “a facility through which an electronic communication service is provided” in order to obtain, alter, or prevent “authorized access to a wire or electronic communication while it is in electronic storage.” For this statute, think Gmail, Facebook, even a dating website.

So, what are we worried about, in layman’s terms? You cannot intentionally access emails or other electronic communications that are stored remotely on servers without permission of the account holder. Gmail, for instance, is an internet-based email service. To access emails from Gmail, it typically requires a phone, tablet, or computer and an active internet connection.  In most cases, this means in order to access the email, you have to log on to the servers where the emails are kept. The emails typically can only be viewed with an internet browser or application, and typically the emails are not permanently downloaded and stored locally on the device. This means that that each time you want to see a particular email, you log back onto Google’s servers to access the electronic communication. While an email remains on Google’s server, especially when it is unread, it is typically considered to be “electronic communication in electronic storage.” Therefore, anyone who accesses their spouse’s Gmail account, without express authorization, or beyond the scope of authorization, risks violating Federal Law. This holds true for other services through which private messages can be sent, such as Facebook, dating sites, etc.

So what exactly is meant by, “beyond the scope of authorization?” This means that if your spouse asks you to open their email account and look up Aunt Edna’s recipe for sugar cookies, it means you are allowed to log in and look up the recipe for sugar cookies, not read through an interesting looking email that says, “We need to talk about what happened after the Christmas party.” Having limited authorization for a specific purpose does not give you the right nor the freedom to read any other emails that you may come across.

What is meant by “intentionally accessing?” This means that you had to do something with the purpose of opening the email and accessing its contents. So, if your spouse leaves open a window containing an especially damaging email from his or her lover in which they detail their escapades, and all you did was sit down at the computer and see it without clicking on a thing, you have not intentionally accessed their account.  If you innocently come across something like this, take a screen shot, of what you can see on the screen. Do NOT open other emails to find “more proof” as this could constitute intentionally accessing stored communications without authorization. 

The Computer Fraud and Abuse act is substantially broader in scope. This Act makes it a Federal crime to intentionally accesses a computer without authorization or in excess of authorized access, and thereby obtain “information from any protected computer.” A protected computer is any computer involved in interstate commerce, which can be understood simply to mean a computer with internet access.  Arguably, using your home computer to access the private portions of your spouse’s logged in social media accounts runs afoul of this statute. There is still an intent element, so if you are trying to open your own Facebook account, and your spouse stayed logged into their own account, there mere fact that you indivertibly opened their account is not going to be “intentional.” However, once you see you are in their account instead of your own, you need to immediately log out, NOT use this as a chance to snoop. Snooping through your spouse’s accounts without their permission is no different than snooping through a stranger’s account without their permission… doing so is a crime. 

At this point you are likely wondering, what information can I safely access and not run afoul of violating federal law? The safest thing is to seek independent counsel and always ask your attorney first. Information that is publicly available, such as a spouse’s public Facebook page is fair game, provided you are not logged into their account to obtain it. Your attorney can seek much of this same information, including the private portions, by requesting this information in discovery.  

Generally, information locally stored on a device that you own is fair game. Rarely, your spouse might make an archive (a back-up) of their emails or social media accounts. If the information is locally stored on a device you own, having, copying, and using this information does not present the same problems as downloading the information over the internet from your spouse’s accounts without their permission. 

In all cases you should probably consult with counsel BEFORE you obtain the information. Emails and other communications may also exist on your devices buried in local storage, in places you cannot easily access. Such information can often be retrieved by forensic computer experts.  You should, however, be very cautious when turning over electronics to third parties – even experts that you yourself have hired. You should also probably not turn over any electronic devices without first discussing the risks with your legal counsel.  

In summation, you may find yourself in a position to snoop on your spouse. You may even feel entitled, as their spouse, to have access to their emails and other private communications.  Federal law makes no exception for you to access your spouse’s account without their express authorization. The fact that your spouse may have stayed logged in does not give you permission to rummage through their account. Your attorney is not going to want something you came by illegally. So, do not go digging through your spouse’s emails or Facebook posts. Do talk to your attorney about how to obtain evidence against your spouse that will not land you in hot water.