Some Thoughts on the Ashley Madison Data Dump

As have many divorce lawyers across the country, we have had numerous inquiries about concerns people have that their spouse may be revealed as a paid member of the Ashley Madison website.  Ashley Madison, for those who do not know, is a website that markets itself unashamedly as a place for married spouses to have a discreet affair.  A hacker group that found the site offensive decided to take matters into its own hands and illegally obtain millions of registered users’ names, email addresses and credit card information.  After unsuccessfully attempting to extort Ashley Madison into shutting down, the hackers released the hacked data.

Before you rush to find out if your spouse used Ashley Madison, we have some cautionary thoughts.

First, accessing the data might well be illegal.  The hacker who obtained the information did so in violation of federal wiretap statutes that impose civil and criminal liability on those who access computer networks without permission and distribute private data.  Persons who receive that information may also be subject to suit.  So, should you find yourself in possession of the hacked information, and attempt to use it in a divorce, you may have legal liability and the evidence may not be admissible.

Second, accessing the data will be challenging and might expose your computer to viruses or hackers.  The data is not posted on a website like Wikileaks; you have to access it through the “dark web,” an underground network of peer-to-peer sharing that is populated with sophisticated computer users.  If you lack the necessary skills, you could easily leave your computer open to being hacked and/or having a dangerous virus placed onto your computer.

Third, the data may be fake.  Many users of Ashley Madison, as one might imagine, use false information rather than risk exposure.  In doing so, they may take another person’s email address, or create a bogus one, to hide their identity or simply to play what they consider a harmless practical joke on someone.  Even if you find the data dump and find your spouse’s name or email address, it does not mean that your spouse did in fact use the site.

Fourth, assuming you did find valid proof that your spouse used the Ashley Madison site, it does not mean that your spouse actually had an affair or intended to have an affair.  It may have been a weak attempt at venting marital frustration – stupid, yes, but not the same as having an affair.

Finally, if in fact you prove that your spouse used Ashley Madison to have an affair, you may not necessarily have “ammo” to punish your spouse in a divorce.  In Missouri, a no fault divorce state, having an affair does not automatically mean that one spouse will receive a higher proportion of the marital assets – it only means that the court can consider the marital misconduct in dividing marital assets.

The Ashley Madison data dump again highlights the risks of having online relationships during a marriage.  Everything you do, even those you think may be secret, can potentially be found and used against you in a divorce. The more activity you do online in pursuit of an extramarital affair, the more likely you could be exposed and, given that level of openness and recklessness, the more likely you might be subject to marital misconduct penalties in a divorce.

If you have questions about Ashley Madison and divorce, contact us – we can help.

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