Personal Information And Privacy, And Related Concerns


During the course of our representation, we will need to collect sensitive data including without limitation your personal financial information. We are committed to protecting this information.

We understand the need to safeguard sensitive information about you and we maintain standards and procedures designed to prevent misuse. We collect information about you only to help us protect you and your interests.

Please understand, however, that sensitive information that is required to be disclosed to the other party in litigation or filed with the court may then be used by anyone who comes into its possession. Please also be clear that the content of all court filings is most probably going to be available for examination by the public, as court files are very rarely sealed. With that in mind, we purposely redact (“black out”) sensitive information, like social security and credit card account numbers, from clients’ documents before producing them.

Generally speaking, eavesdropping and recording private communications by another person is illegal, with only a few exceptions (see below). Additionally, such evidence would typically be inadmissible under the Family Code. These principles are reasonably extended to the reading of private email messages and copying of electronic data. California law now extends the definition of “domestic violence” to include the unauthorized downloading and distribution of contents from cell phones and the unauthorized hacking of social media accounts.

Serious problems can also arise with other forms of surveillance, such as hidden cameras, automobile tracking and etcetera. We have had cases involving the most sophisticated levels of surveillance. We see more and more of this and we take it very seriously. Please inform us if this is or becomes an issue.

One of the few exceptions relating to California’s Invasion of Privacy Act is that a parent of a minor child may make surreptitious recordings based on an objectively reasonable belief that the recording may produce evidence of child abuse. A published case, In re Trever P., held that a parent could admit into evidence a secret recording of abuse (sexual molestation) of her young child notwithstanding the Act’s generally broad language. Please immediately inform us if you might believe that you and your minor child might be in such a situation.

Email Communications

As we all know, there are substantial timing benefits to communication by e-mail. Please, however, be clear about the following:

  • E-mail communication is not a secure method of communication.
  • Any e-mail that is sent to you or by you may be copied and held by the various computers it passes through as it goes from me to you or vice-versa.
  • E-mails that reside in computers are subject to being accessed or copied by persons innocently or with a hostile agenda.
  • E-mails may be inadvertently accessed by, or delivered to, persons not intended to participate, nor authorized to being a part of, our communication.
  • Our e-mail communications may be intercepted by persons improperly accessing your computer or my computer or even some computer unconnected to either of us, which the e-mail passes through.
  • By inadvertence, someone may reply to an e-mail and mistakenly include an unauthorized person, even opposing counsel or the opposing party, because of using the “reply to all” feature.

We are communicating this to you in writing and via e-mail because you agree that we can use e-mail for communications, and the transmission of documents, between us. If you determine that you do not want to use e-mail as a method of communication, please immediately advise me, and we will stop using e-mails and restrict our method of communication to either the US Postal Service, overnight delivery services or direct messengers. Or, perhaps we could then set up an encrypted communications system, which is something we have done with other clients and attorneys. A cost would be involved, but the technology is available.

Until and unless we might hear from you to the contrary, we will continue to communicate with you, and send you documents, including our billing statements, by e-mail.

Emails to and from an employer’s computer are considered non-confidential. Thus, please only use your own private email, especially in order to protect the Attorney-Client Privilege, discussed in my initial advisement letter that this accompanies. Because it is hard for me to keep track of all of my clients’ various email addresses, we will assume that you are using your private email address, and not an employer’s email address, when you email us and when we respond to that address.

Documents that are sent by email often contain “metadata” (i.e., information describing or tracking the history, authors or management of electronic data) that you may not want someone else to know. As we cannot be responsible for removing metadata from the documents that you may be sending others or us (as opposed to the documents that we send from this office), please be aware of this concern. Even converting a document to a .pdf format through computer software may not do the job. The safest way to “scrub” metadata from a document is to convert it to .pdf format by scanning it by hand.

With this in mind, we use an encrypted system for sending confidential documents, like tax returns. Let me know if you might want information toward obtaining your own software for securely sending documents from your systems. Of course, there is an associated charge with the various software on the market.

An unpleasant thing for a lawyer is to be presented with a copy of an e-mail at a hearing that might contradict the client’s position or otherwise put the client in an unfavorable light.
Thus, please take a deep breath before emailing, texting or otherwise communicating something that could come back to haunt you.

Phone/Computer Security

It is easy to hack someone’s smartphone and computer including without limitation installing virtually undetectable “apps” that could track and record virtually everything a person does while in the presence of their devices. This could happen, as just one example, in a case where the other party has been pre-planning for litigation without the other’s knowledge. You only need be away from your device (or asleep) for a few minutes to provide someone the opportunity. We see a lot and these things happen more often than you think.

At the least, please review your devices’ various privacy settings. We recommend eliminating “facial” and “fingerprint” recognition abilities (for instance, someone could potentially hold your device to your face or use your finger while you are sleeping!). Please also consider having a computer expert “scan” your devices for spyware and replacing your devices with new “scrubbed” ones. The cost could be only a few hundred dollars and it could prove valuable.

Danger of Social Networking

Be careful if you may have or might in the future upload any information or documentation on social media. For instance, we have had more than one client embarrassed when “confessions” made to friends on Facebook or compromising photos came back to haunt her when used against her as evidence. Consider everything you might put “out there” available to those who would potentially use it against you.

As such, we advise you to now cease all activity related to posting on social media outlets, as it is understood that anything posted can be used against you in court. Please, though, do not eliminate or modify any postings without first talking to me. Adverse legal consequences could follow in relation to such changes. A court could find your erasing or modifying prior postings as spoliation (“tampering”) of evidence, which is a serious offense.

On the other hand, please keep your eyes out for such communications that may have been made by the other party or witnesses. Using certain software, we can monitor social networking sites, and some clients ask us to provide that service. On request, we could set that up at relatively minimal cost.

Electronically Stored Information

The law requires that you now protect from change and destruction all electronically stored information (ESI) during your case. This means that, until your case is over and you are told otherwise by me, you must not delete or modify any email, text messages, voicemails or even social networking postings (see above; a lawyer in another state was infamously disbarred for encouraging this). If you are using QuickBooks, Microsoft Money or other accounting software at home, you cannot delete those files. Frankly, “if in doubt, keep it.”

If you suffer a hardware failure, such as a hard drive that stops working, you must let my office know so we can notify opposing counsel. You will need to keep that broken hard drive until we might tell you otherwise. This is also true for your cell phone. If you decide to replace your phone, you cannot turn in your old one. Rather, you must keep it safe until your case is over and we tell you that disposal is acceptable.

This rule of keeping old, broken or inoperable hardware also applies to the following:

  • iPods or any music player.
  • iPads or any computer tablet.
  • Thumb drives and portable hard drives.
  • GPS devices, whether handheld or built into your vehicle.
  • Security systems that record video or audio.
  • Digital audio records.
  • Media used to hold your digital photos, even the ones on your cell phone. This includes CD’s, DVD’s, flash drives, SD drives, Compact Flash Drives or any type of device used to hold the digital photo, video or audio.

If you have any questions, call us first before deleting anything, modifying anything or throwing anything away. The penalties the court can impose for what it might deem to be the destruction of evidence or potential evidence can be severe. They potentially include prohibiting you from presenting certain evidence, deciding issues without your input or making you pay for the re-creation of the lost, modified or damaged ESI.

Additional Concerns

AAML Fellow, Leigh de la Reza, made some further points in an article:

Be aware of devices that are controlled by a user’s cell phone and … remove the other spouses’ ability to control those devices or disable the device. For example, wife has exclusive use of the home, and in the home the couple had a Nest

thermostat that can be remotely controlled with a user’s cell phone. Every time wife came home after being away, she found the home unreasonably hot and turned the air conditioner on. Eventually, she realized that her estranged abusive husband was remotely turning the air off. He could track when the wife was in the home by watching on his cell phone when she turned the air back on again.

Also, disable devices that allow users to drop into listening or viewing capabilities. For example, the Echo device allows users to “Drop In.” When dropping in, the person on the other end does not have to answer the device. It works like an intercom allowing the person to listen and speak through the device. Amazon does not allow just anyone to use Drop In feature. The feature must be set up through the Alexa app; however, in a family law situation that feature may already be enabled prior to separation. The Echo Show has a similar capability except the user can ask Alexa to show a video of the front door, or a particular room with compatible cameras, turn on lights or set thermostats. Many home security systems have remote video features as well.

Clients with children should be careful when children are given cell phones, iPads, and other electronic devices—especially if they are involved in domestic violence situations. Programs such as Mobile Spy not only track all messages and apps on the phone, but it also allows a user to turn on the camera and video feature on the phone. The user can also set up Geo Fencing, a feature that notifies the user every time the phone leaves a predetermined geographical zone. In some states, parents have vicarious consent to legally install spyware on their child’s phone.

Many apps like Mobile Spy do not appear as an icon on the phone. It can be difficult to know if the phone has a spyware app on it. One indication is a phone that runs unusually hot or quickly loses its battery life. Clients concerned about mobile spyware may want to run a spyware check through a service such as Certo. The program makes a copy of the user’s phone and then scans it for spyware.

Interim Conclusion

The law now requires these considerations, and it is our duty to make sure you are informed. Please contact us should you have any questions or comments.

 
Certified Specialist, Family Law,
The California Board of Legal Specialization of the State Bar of California 
Fellow of the American Academy of Matrimonial Lawyers
Fellow of the International Academy of Family Lawyers 
Writer’s direct email: gherring@theherringlawgroup.com