Tech Nuptials, Part 1 of 3 – To Spy or Not To Spy


Chris Montgomery:  Hi, my name is Chris Montgomery and I’d like to welcome you to to this week’s episode of TNtv. This week we’re actually beginning a three part series on how technology and it’s essentially evolved and how it’s now impacting family law. And we’ve brought in Jonathan Marks, from The Marks Law Firm to have this discussion today expounding a little bit more on the effects that technology is having on family law, and specifically in the area of divorce. So I appreciate having you here today and let’s get started.

So Jonathan, exactly how has technology, and obviously the evolution of social media, you know Facebook, things like that, mobile devices, email – how has that impacted family law as a whole?

Jonathan Marks:  Well, I think you can look at it in four different segments of the way that technology has evolved and really affected family law. I mean, first of all, um you really look at how somebody can discover information which they never used to be able to. So in the old days, maybe, you would pick up, call a private investigator and have them follow your spouse around and they’d take some polaroid photographs. Today it’s certainly evolved and it’s more easy to really take a step back, sit at your computer and figure out what your spouse may or may not be doing that’s to your betterment or to your detriment.

CM:  Okay.

JM:  Social media has also had a huge effect upon the area of family law. The ability to be such a mobile society and be able to post things immediate, whether it be pictures or just a comment on Twitter, photographs on Instagram, has really allowed people to put things on the web that is easily focused on what they’re doing wrong and allow the entire world to capture it, print it out and then use it within a family law setting in a courtroom.

CM:  Okay.

JM:  The third aspect of it really has to go into the Bitcoin or other technologies that have allowed someone to hide assets and really making it difficult maybe in a digital world to find those assets. And then the last aspect of it would be how someone today may be able to prevent this social media aspect or other electronic communications from becoming public and really used against them. And we would try to address those things in maybe a prenuptial agreement so that before you get involved within a marriage, should it end up in divorce, you’re able to really have an insurance policy to prevent you from having major damage at the time of the divorce going through.

CM:  So Jonathan, you had mentioned obviously a variety of different ways that this has been impacted or should I say family law has been impacted by technology, so let’s break those down a little bit more in-depth. Let’s talk a little bit about the “To Spy, or Not to Spy” if you will and maybe some of the methods people used to employ, as you alluded to somebody with a polaroid camera and a Volkswagen Bug following someone around with the hat and the sunglasses on.

JM:  Sure.

CM:  Obviously times have changed.

JM:  Absolutely.

CM:  So if we could, let’s spend a little time talking about the evolution of that

JM:  Okay.

CM:  and maybe some of the pitfalls and issues you are seeing these days.

JM:  Right. So as you mentioned Chris, in the old days you probably would pick up the phone, look in the Yellow Pages and you’d call a private investigator. They’d put their cloak and dagger on and they’d go and follow your spouse around and give you a report a month later with some polaroids and maybe a few little napkins or what have you of what they found at the various…

CM:  Might find a file folder underneath the bathroom stall or something right?

JM:  They may, they may. Exactly and they may say to you, “Here’s some cocktail napkins from where I saw your spouse and another person.”

CM:  Right.

JM:  Today, it’s much easier than that but also raises a whole other level of concerns especially from a legality standpoint.

CM:  Sure.

JM:  So, maybe just a handful of years ago the big invention would’ve been that you had some form of a logger onto a keyboard, you’d watch somebody’s messaging by having those strikes. You’d print that out. You’d maybe get a determination of emails or other correspondence that they’re writing to somebody else.

CM: Okay.

JM:  Clearly not legal, but it was something that people were able to pursue by purchasing it off the internet and sliding it under a keyboard.

CM:  Okay.

JM:  Today what you would see is that they’re using the mobile technologies for the ability to determine specifically what someone’s doing.

CM:  Okay.

JM:  So you may see that somebody installs an app on a cell phone and they’re recording everything that somebody is stating which can lead to bigger problems. You may see that somebody is going onto their account and downloading the text messages from the AT&T site. You may have somebody learning someone’s password into the email and they’d go into that account and they would download it. So you’re seeing an evolution of what today’s modern technology as a mobile society is allowing somebody to do to really handle their own digital spy work on their spouse.

CM:  So, obviously we’ve covered a lot as far as social media, email, cell phone conversations are concerned, but let’s say something..I mean a lot of people now have cameras in their homes, nanny cams and just security cameras in general because they’ve become so affordable these days.

JM:  Sure.

CM:  What if say, somebody is using a nanny cam or some sort of security cameras that they have in their home to monitor certain activities. How does that kind of play into this fold?

JM:  Well if you take the standard security system. So if somebody has an alarm system, it’s recording what’s going on within the home, you have 16 cameras throughout various rooms, so long as everybody understands that this is being recorded and it’s by your consent because you and your spouse have sort of gone to ADT or another security cam, company for these cameras, then you could obtain those recordings and those recordings could then be submitted to court as admissible evidence.

CM:  Okay.

JM:  The same in theory could be true in regard to the nanny cam issue, so long as everybody is aware of it. But if on the other hand, there’s a teddy bear in your child’s room, you go and put a webcam in there or you stick a webcam into the ceiling in the bathroom, those are going to be deemed illegal and you could be facing some serious repercussions for that action.

CM:  If you’re in a home, and you have say a community computer, one that the entire uses – Mom, Dad and all the kids versus say Dad or Mom’s business laptop that they’re bringing home.

JM:  Okay.

CM:  If the activities, that might lead to divorce or whatever the case might be or if they’re trying to build a case, is there a difference between from say a business owned laptop versus a community computer that’s in the middle of the kitchen and how does that all line up?

JM:  So, I, you did a good way to bifurcate that. So when you’re looking at the “home” computer, there’s no expectation of privacy because everybody’s using it. So the most common situation you would see is that someone would take that computer, they’d take it to a forensic expert, they would do an imaging of the disc, they would have that copy and then examine that disc image to determine if anything is on there that can be useful. And it’s very similar to the way you would do a recording of anything else, only a lot more technologically savvy.

CM:  Sure.

JM:  And you have to be very good obviously in the timing aspect of it, because imaging a disc is not something that can happen in a very short time frame. On the other hand, if this is employer’s laptop, and you’re going to take employer’s laptop and then you want to take it to the forensic expert to get a disc, a disc image that’s going to a problem. You then invaded upon the privacy of that particular employer, you may liable yourself to some form of a civil damage because of the tortuous act of what you just did to the employer.

CM:  Okay. Now I’m going to take it a step further though.

JM:  Okay.

CM:  It is a business that’s owned by a husband and a wife.

JM:  Well…

CM:  (laughs)

JM:  That, that probably has less of a privacy concern because if they’re joint owners, it’s joint property and the business is going to be considered marital. Then that property, in of itself, is going to be subject to division as part of the marital pot. So, if you truly have a business that’s jointly owned and this is part of the property to be divided by the court, it may be admissible because again, you know that it’s structured in a way that your spouse should have access to it anyway as an owner of that business.

CM:  Well Jonathan, thank you so much for joining me today. I certainly do appreciate it.

JM:  No, it was my pleasure. Thank you Chris.

CM:  Absolutely. And we have – as we had mentioned at the beginning of the episode, this is actually just part one of a three part series that we’re doing on how technology has evolved and how it’s really impacting family law in the area of divorce. However, since we are wrapping up the end of episode one, if you would like some additional information on how The Marks Law Firm, Jonathan in particular, can assist, please don’t hesitate to give him a call using the information on the screen behind me. And once again, I thank you so much for your time today as well as for yours Jonathan.

JM:  Thank you very much.

CM:  And I look forward to seeing you next time on TNtv.

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