Presenting a 90-Minute Encore Presentation of the Teleconference with Live, Interactive Q&A Electronic Spying and Tracking Spouses in Divorce Cases: What’s Legal in the Digital World? Navigating the Legal and Ethical Challenges of Evidence Obtained Using Spyware, GPS Trackers, Wiretaps, Webcams, Social Media Account Interception and More WEDNESDAY, DECEMBER 12, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Henry S. Gornbein, Attorney, Henry S. Gornbein , Bloomfield Hills, Mich. Sharon D. Nelson, President, Sensei Enterprises , Fairfax, Va. John W. Simek, Vice President, Sensei Enterprises , Fairfax, Va. E.X. Martin, III, Attorney, E.X. Martin, III, Attorney at Law , Dallas The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Presented by Sharon D. Nelson, Esq., and John W. Simek www.senseient.com snelson@senseient.com jsimek@senseient.com 703-359-0700 3975 University Dr., Suite 225 Fairfax, VA. December 12, 2012 Strafford Publications 5
From the Headlines: Sherri Peak of Seattle • Husband bought cell phone and GPS tracker • Attached both to car battery • Wired into electrical system so he didn’t have to charge batteries • Phone ringer on silent so he could call (auto answer) and listen to her in-car conversations • Hid the GPS tracker • Spyware on spouse computer • Husband spent 8 months in jail convicted of felony stalking 6
ELE LECTR CTRONI ONIC C SPYING YING AN AND D TRA RACKI CKING NG SPOUSES OUSES IN DI DIVOR ORCE CE CA CASES ES What’s Legal in the Digital World? Navigating the Legal and Ethical Challenges of Evidence Obtained Using Spyware, GPS Trackers, Wire Taps, Web Cams, Social Media Account Interception, and More Presentation By: Henry S. Gornbein 40900 Woodward Avenue, Suite 111 Bloomfield Hills, MI 48304 248/594-3444 DivorceSourceRadio.com hgornbein@familylawofmichigan.com Henry@divorceonline.com
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HEADLINES FROM THE NEWS THE STRANGE CASE OF LEON WALKER Leon Walker was charged with hacking during his third divorce in a Michigan case that made national headlines, and was featured on Good Morning America, CNN, and other major news sources. The facts are as follows: • Leon Walker created the email accounts for himself and his wife. • The computer was his. Note that these facts don’t matter, because his wife’s e-mail was protected by a password. • There were several computers in the house, including the laptop at issue. • His wife lied that she did not use the computer, and he was charged with unauthorized use of the computer. 9
Mr. Walker forwarded some of the emails to Husband #1 regarding allegations of abuse of the child from her first marriage, and the child that he and his wife had together. The first trial judge ruled that the emails were admissible and one week later, after the judge acquired the incriminating emails, Walker was arrested and charged. After a torturous battle of approximately one and one half years, the hacking charge was dismissed because the wife was found to have spied on her husband’s phone text messages. All charges were dismissed. 10
Questions Raised by the Leon Walker Case: 1. Can you hack into a computer that is owned jointly? Yes, because it is the privacy right that is protected. 2. When can you open email that is your spouse’s? If it is password-protected, never unless you have consent of the spouse or a court order that the e-mail be produced. 3. What about spyware or hardware keyloggers? One CA case has found hardware keyloggers ok, but no one else has. Spyware in divorce cases is always illegal under state and federal wiretap laws. 11
Electronic Spying & Tracking Spouses In Divorce Cases What’s Legal In The Digital World? E.X. Martin, III Attorney at Law 8828 Greenville Avenue Dallas, Texas 75243 (214) 343-7400 exmartin@airmail.net
Video Recording 13
Recent Case Regarding Interception Nonconsensual Communications 14
Admissibility of Wire and Electronic Communications Vicarious Consent The Texas penal code addresses the unlawful interception of communications, stating that a person commits an offense if he intentionally intercepts a wire, oral , or electronic communication. Tex. Penal Code Ann. § 16.02(b)(1). The statute lists various affirmative defenses to prosecution under section 16.02(b), including the following: It is an affirmative defense to prosecution under Subsection (b) that: . . . . (4) a person not acting under color of law intercepts a wire, oral, or electronic communication, if: (A) the person is a party to the communication; or (B) one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act. Id. § 16.02(c)(4). The statute does not specify that consent can be given vicariously by a parent or guardian. 15
In interpreting Sec. 16.02(c)(4)(B), Texas has joined a growing number of jurisdictions which recognize the Doctrine of Vicarious Consent, which allows a parent to consent to the recording on behalf of his or her child and secretly record the child without being part of the conversation as long as the parent has a good faith and objectively reasonable basis for believing the recording is in the child’s best interests. 16
Ussery v. State Texas Court Of Criminal Appeals Decided January 30, 2008 Unpublished Opinion Recognizing that no Texas case had addressed a parent's authority to vicariously consent to the recording of a child's telephone conversation, the court looked to the Sixth Circuit's decision in Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), the leading case regarding the vicarious-consent doctrine in the context of the federal wiretap statute.(fn3) In upholding the trial court's decision that the parent had not violated the federal prohibition of wiretapping when she recorded conversations between her daughter and the plaintiff, the Pollock court held: [A]s long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording. So what is the problem ? ? 17
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Webcam laws • Illegal in some states where people might expect privacy or where nudity is revealed • Sec. 18.2-386.1 in Virginia is pretty typical • Placement in bedroom specifically mentioned • Explicit photos • Non-consenting person • Includes still photos as well as any kind of video 19
GPS tracking laws • In Virginia, you must have an ownership interest in the vehicle to track it Section 46.2- 1088.6 • Applies to lessee • No laws in many states and a lot of variants 20
TYPES OF INTERCEPTION AND COMPROMISE SOCIAL MEDIA & THE INTERNET There are some do’s and don’ts that I provide my clients with regard to Facebook and other social networking sites that have a substantial impact on divorce in my family law practice. It is becoming a larger and larger issue in more and more divorce and custody cases. Social media sites are not only a source of information but a cause for concern. 21
The following are some do’s and don’ts that are worthwhile to provide to your clients in the event of a divorce: 1. Do not post messages on Facebook. It is dangerous even if you have tight privacy settings. You never know what one of your “friends” may do with what you post. Be discreet. 2. Do not post photos of your boyfriend or girlfriend on the internet. I have handled divorces where one of the parties has posted Facebook pictures of boyfriends or girlfriends, even in the middle of a divorce. 22
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