Discovery versus Privacy in Divorce
It was just three years ago that members of the American Academy of Matrimonial Lawyers noted that the number of divorce cases that included evidence gleaned from social media websites and other electronic data had increased exponentially over the last few years. Since then, electronic evidence gathering has only picked up more steam and today the average citizen is capable of being tracked in more new ways than ever before. Anyone who has watched TV knows that forensic computer specialists can retrieve electronic information even when people have taken steps to delete potentially incriminating data, and that electronic evidence is becoming a regular part of divorce cases across the country.
In addition to obvious incriminating photos posted on social media websites, there are an increasing number of other possible sources of electronic evidence that may or may not be legally presented in court. Anytime information from employee files, financial management programs, emails, recordings, and GPS tracking devices are considered as possible sources of evidence in court, they need to be reviewed for legality before submitting them in court. There are different thresholds for various state and federal privacy rights and any violations can leave a person open to serious legal consequences.
The Federal Electronic Communications Privacy Act and Stored Wire and Electronic Communications Act of 1986 prohibits the interception of “certain electronic communication” and lays out the ability for the victim of the invasion of privacy to pursue both criminal penalties and civil damages. Those statutes also regulate access to any communication that is transmitted electronically, including emails, faxes, voice mails, and text messages. Communication information taken from any shared sources is generally permissible, while opening another person’s individual mail or phone records is usually not. Consent has been the primary issue when confidential information was shared between spouses in the past and today the courts and legal system are still defining the laws governing electronic information. While electronic technology obviously has the potential to provide a wealth of new evidence in divorce cases; it will be up to the courts to decide how it will be utilized in the future.
Many states today enforce both criminal wiretap laws, and a civil cause of action for interception of communication. This translates to meaning you cannot record your spouse’s conversations with other people but you can record conversations in which you are a party without the other person being aware of the recording. Any electronic evidence introduced in divorce court will have to overcome the implied right to privacy that is protected by both federal and state laws. Even though electronic evidence might be a powerful tool in a divorce cases, state and federal privacy laws will still have precedence over their use in court. There is no doubt that electronic evidence will continue to be used in divorce courtrooms, but there may be a fine line between the right of discovery and the invasion of privacy when dissolving a marriage. If you are unsure about the legality of your own divorce case evidence gathering efforts, it is always a good idea to consult with a qualified family law attorney in your area before you do anything that might get you into legal trouble.