What is spyware? • Definitions vary. Generally, it is: – Surreptitiously installed – To monitor a user’s conduct – Transmitting data to or holding it for a third party 31
Hardware Keyloggers • KEYKatcher • KeyGhost • KeyLlama • No software • Requires physical access • Stores keystrokes to flash memory • U.S. v. Ropp, 2004, U.S. Dist. Ct. in L.A. 32
Spyware and stalking go hand in hand • If they’re watching, they know where you are • Makes stalking frighteningly easy • Show up at lawyer’s office, lover’s home, etc. 33
How do you get spyware that records computer activity installed on your machine? • Someone installs it on your machine directly because they have access to it • It is remotely installed by someone, usually via an e-mail attachment • You open an e-greeting card • Links from websites 34
E- mail says: “Honey, I can’t apologize enough for my inexcusable behavior recently. I’ve attached a card to tell you how I really feel inside.” 35
How do you get spyware that records computer activity? • You open a photo of your children • Most folks simply can’t resist this technique 36
E-mail says: I just thought you might like to see the attached photo of the girls in the new summer outfits I bought them last night. Aren’t they adorable??? 37
How do you know if monitoring software is installed? • You don’t – unless an anti-spyware program picks it up, and that’s a gamble • Spyware generally operates by stealth • It doesn’t show up in Programs • You can’t see it when you go to Add/Delete Programs • In fact, you never see it • It changes the date of install after it’s installed • It changes its own name, usually to something innocuous like systemchk.dll • In most cases, it takes forensics to find spyware 38
What do we regularly see? • Specter Pro • eBlaster • The others, far less • Cost to find and document: generally between $3000-$5000 • Can we always tie it to the guilty party? No • In about 2/3 of our cases, the e-mail address to which the report is transmitted has been found 39
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Software to protect against spyware • There is no silver bullet • 2-3 programs recommended • Only use 1 to actively scan (Internet Suite) • You can still get spyware • You must manually scan periodically • Safe computing is still important 43
What if your client installed/used spyware? • Tell them to stop (duh) • They may have to take the Fifth in deposition or in court • You cannot be a party to their deceitful conduct • However, the client may make suggestions which would be helpful to a private investigator • In 2010, TN law firm sued for $2 million for allegedly using spyware evidence in a divorce proceeding 44
What if your client was the victim? • This is the ace of trumps • Spend the money and document it • Make sure your client has machine cleaned thereafter and changes all passwords • Ask questions in deposition from which there is no retreat – get them on record • Be careful – a substantial minority of people believe that spyware has been used when it has not • Remember, some people simply crack passwords – also illegal! 45
Is it ok to monitor children? • Yes, but spouse should be told • Cannot use this excuse to monitor spouse 46
Smartphone Spyware • Big rise in volume • People text from phones • Phones are always with them • How does spyware get on your phone? • Tell client – never leave cell phone unattended or loan it to someone • Mobile Spy and FlexiSpy seen most often 47
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Never let a client accept a smartphone as a gift • Pre-installed with spyware • They won’t know • Will transmit all texts and e-mails • Will call installer when making a call to listen in • Can listen in even when on a restaurant table 51
What to tell clients • Call cell provider and make sure location services are not enabled • Make sure they have their own password-protected cell phone account • Set GPS to 911 only • Violence Against Women Act of 2005 (now stalking can include use of GPS) 52
Stolen smartphones • Common to receive stolen smartphones • Certify in writing that it is theirs (or marital property) and that they have the legal right to freeze the data • Searching data? • Without PIN, the phone is “open” • With PIN, court order or consent required • Law enforcement uninterested 53
Finding smartphone spyware - iPhone • Has the phone been jailbroken? • Can’t get it on without jailbreaking • If jailbroken, expert will look for iPhone spyware • Amateurs won’t find it 54
Finding smartphone spyware - Androids • Apps in Playstore have hopefully been vetted • See if phone is configured to allow sideloading • If so, same drill looking for Android spyware 55
Must have possession of smartphone • In order to install spyware • Remote installation not possible - YET 56
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Cellebrite UFED Touch 58 58
File The Motion, Get The Discovery, Win !!!!! 59 59
Cellebrite Physical Analyzer & Extraction Software Interface 60 60
Cellebrite Physical Software Extraction Summary 61 61
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Calls From Justice Moseley 64 64
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Attorney David Pire 66 66
MMS Messages – Messages That Include Multimedia Content 67 67
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iPhone Embedded GPS / Geolocation Data 71
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Locations – Exported As KML File To Google Earth 73
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Cell Phone Forensics For Criminal Defense Attorneys E. X. Martin – Dallas, Texas 77 77
Video Recording 78 78
Recent Case Regarding Interception Nonconsensual Communications 79 79
Can Spouse Authorize Forensic Imaging? • Yes, provided it is marital property • There are NO reported court cases, but no court has yet failed to let evidence in or has raised an objection to it 80
GPS trackers - $99-$500, battery powered, average 10-50 days 81
What can GPS trackers tell you? • Can pinpoint location • Can show the whole route • Detailed activity reports 82
What can GPS trackers tell you? • Alerts – Arrival at defined address – Departure from defined address – Notification if vehicle moves – Notification if a vehicle does not move by a pre-defined time – Operation at odd hours 83
GPS Web trackers • Man who put tracker on top of car • Mechanics often find them and point them out to the victim • Good idea to look around car once in a while • Usually are tipped off because the other party seems to know too much • Your cell phone can also be a GPS tracker – Verizon (Family locater) – Sprint (Family locater) – Can buy a cell phone, register for GPS service and hide it in spouse’s car 84
Webcams • Do you know if the other party is recording? • Today’s boyfriend/girlfriend is tomorrow’s worst enemy • Easily hidden, often wireless 85
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. 86 86
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. 87 87
3. Be careful what you are saying in e-mails or texts. Text messages brought down the mayor of Detroit. 4. Compromising videos. Even videos that are shot during a marriage can come to haunt you in the event of a divorce, especially if they get in the wrong hands. 5. Gambling online is a form of addiction. I have had cases where people have lost substantial sums of money that impact on a divorce. Don’t . If you have a gambling problem, seek help. 88 88
6. I have had cases with E-trading. Be careful. 7. Shopping online. People buy, and spend a lot of money on line. 8. Pornography. I have had many cases where computers are filled with pornographic images. 9. I have had many cases where people have met online and been involved in extra-marital affairs. 89 89
10. People use credit cards for charges on adult sites, for charges when they’re meeting people. 11. Watch your children. The internet can be very dangerous to children with predators lurking everywhere. 12. Remember that even when you press the delete button, the images remain on your hard drive and can be retrieved until overwritten – and you never know when that will happen. 13. E-mail can be a treasure trove of information in a divorce. 90 90
All states have computer crime laws which generally say that you cannot gain unauthorized access to data even if you own the computer or it is a marital asset. If a password protects data, you cannot guess or crack the password – or install spyware. If your client has done this, you may have to advise them to “take the Fifth. ” 91 91
• SPYWARE Spyware is never legal in divorce cases – it is illegal under both the federal wiretap law and state wiretap laws. Some clients become addicted to watching what their spouse is doing. You cannot continue to represent them if they will not stop because you then become part of the deceitful conduct. GPS TRACKING The laws are all over the map from state to state – there is no federal law except respecting law enforcement. 92 92
FACEBOOK AS EVIDENCE In 2010 and 2011, Westlaw revealed 689 published cases involving social media. In any divorce or other legal proceeding the key is that Facebook entries, You Tube videos, email exchanges, tweets, texts, and picture posts, that a client might have considered private, are discoverable and can be useful in a legal proceeding. 93
1. The first issue is proper authentication due to the possibility of alteration, or that the communication was counterfeit. 2. The next issue is relevance. 3. The third issue is that if you are trying to offer it into evidence, you must show that the posting, photo, or other information was done by the particular person or entity who you claim it was posted by. 94
4. Has the person or entity shared the password with any other person or entity? 5. Show whether the person or entity profile contains identifiable personal information, including birthdates, photographs, and other unique or known information about that person or entity. 6. Discovery Interrogatories should be sent to determine what sites, if any a party uses, the IP address, the user names, and the passwords. 95
Another discovery method can be to have the opposing parties sign an authorization to provide access to that parties social media profile. Facebook has recently added a feature allowing users to download each and every activity from account opening to the final status update to a zip file. There are cases going in different directions regarding whether passwords should be turned over so that a party can make sure they are obtaining all of the requested content. 96
The best interests of the child is almost universal regarding custody and parenting time. Suspicion of abuse, compromising photos, inappropriate activity that shows up on Facebook are all fair game. An example is the case of Elissan v. Lanb, Op. 51339(U), NY Family Court Monroe County (April 7, 2011) . In this case, the mother used Facebook and blogs to rant about her ex-husband. 97
These inappropriate photos clearly were evidence and had bearing on the court’s decision that the mother was a less fit parent than her ex-husband. There are cases across the country that have addressed the issue of social media content. The cases involved concluded that a profile or post from a party or witness that is public information is fair game. See: NY Comm. Prof’l Ethics Op. 843 (9/10/10). 98
Another issue is that a lawyer should not use assumption or trickery, such as friending a person under false pretenses to gain access to private information. See: Philadelphia Op. 2009-02; Assoc. of the Bar of New York, Op. 2010-(2). The use of social media as evidence is a growing field with technology far outpacing the law at this point. 99
§ 16.06. UNLAWFUL INSTALLATION OF TRACKING DEVICE Texas Penal Code 16.06 A person commits an offense if the person knowingly installs an Electronic or mechanical tracking device on a motor vehicle owned Or leased by another person. Affirmative Defense: Obtained consent of the owner or lessee of the Vehicle before installation or was a peace officer with court order. Class A Misdemeanor 100
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