Divorce lawyers, beware.
Tech-savvy clients may be arriving at your office bringing a host of ethical—and even criminal—problems wrapped up with their domestic cases. They may be using cell phone software to illegally gather information, or they themselves may be victims of unlawful snooping.
The spyware that sneaky spouses once used to keep tabs on their partners’ computer use has given birth to even more intrusive applications that can hide on a victim’s smartphone.
And the information such software can reveal is eye opening. The spy programs can monitor and record smartphone use in real time, logging records of phone calls, text messages, photos, Internet activity, cell phone location and even audio picked up by the phone’s microphone.
Earlier this year, a federal judge in Virginia ordered the end of all advertising and sale of a spyware application called “StealthGenie.” A permanent injunction bars use and access of the app. The developer of an earlier computer spyware program called “Lover Spy” remains a federal fugitive. Most lawyers and advocates familiar with smartphone spyware say the abuse of such products is growing, despite the StealthGenie prosecution.
“Yippee. One down and hundreds to go,” said Cindy Southworth, executive vice-president of the National Network to End Domestic Violence, who has spent 16 years focusing on the use of technology that threatens the safety of domestic violence victims.
Cell phone spyware is a favored tool of those focused on extreme domination and control of a partner, and the advertising targets those abusers, Southworth said.
“All of these products are blatantly marketing the surreptitious surveillance of communications,” she said.
Stop, in the name of the law
Some family law attorneys report that more clients are showing up with information that could only have come from unauthorized interception of private communications.
“It’s something that comes up quite regularly, especially when a new client comes in and says they have all this dirt on their ex,” said attorney Richard Garriott of Virginia Beach, Virginia. The situation can call for some quick client control, he said.
“You have to say, ‘Stop! Before you say another word, tell me how you got this information,’” Garriott said. “You’ve got to go through a litany of questions about the phone. Was it a joint account, was there a shared password,” he said.
If the client admits to using spyware, the lawyer needs to lay down the law and make clear that she can’t view the data or use it in court. If the client stays with the law firm, the first instruction should be to get rid of the spyware, Garriot said.
James McCauley, ethics counsel for the Virginia State Bar, endorsed that kind of client inquisition.
“Once a lawyer has received from a client what appear to be communications from another’s third-party phone conversations, it triggers a duty to make an inquiry as to the source,” he said. “The lawyer, ethically, has to instruct the client not to do it. It’s a criminal offense.”
Divorce is legal, spying’s not
Technology has changed the practice of domestic relations law, Garriott said. He said his firm’s staffers regularly do social media checks as part of their work-up of a file.
“It continually amazes me what people put out there on the Internet they don’t think will come back to haunt them,” he said.
While experts say the incidence of smartphone spyware use is growing, the trend is still too new to have produced any reported legal decisions about misuse of the products.
“Most of the time, luckily, the majority of the attorneys I deal with, they follow the rules,” Garriott said, adding that opponents who lack legal counsel don’t know how to get the evidence admitted into court, anyway.
Victims of domestic oppression present different problems, according to Southworth.
The first advice for purported victims is to “trust your instincts,” she said. Don’t use the phone for anything confidential if you suspect it has been compromised by spyware, she advised.
“In many cases, the offender actually tips his hand by taunting the victim with information he shouldn’t have,” Southworth said.
At domestic violence shelters, victims with cell phones suspected of infection are advised to place the devices in airplane mode or remove the batteries, at least for the night, she said.
The victim should be counseled about having a safety plan before taking the phone off of airplane mode, Southworth said.
“That’s the kind of conversation we recommend having the next day,” she said.