Privacy, Snooping, and Divorce Law

This front page story in the Sunday NYT caught my attention over the weekend:  Tell-All PCs and Phones Transforming Divorce.  Here's an excerpt:

The age-old business of breaking up has taken a decidedly Orwellian turn, with digital evidence like e-mail messages, traces of Web site visits and mobile telephone records now permeating many contentious divorce cases.

Spurned lovers steal each other’s BlackBerrys. Suspicious spouses hack into each other’s e-mail accounts. They load surveillance software onto the family PC, sometimes discovering shocking infidelities.

Divorce lawyers routinely set out to find every bit of private data about their clients’ adversaries, often hiring investigators with sophisticated digital forensic tools to snoop into household computers.

“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.”

Privacy advocates have grown increasingly worried that digital tools are giving governments and powerful corporations the ability to peek into peoples’ lives as never before. But the real snoops are often much closer to home.

"Google and Yahoo may know everything, but they don’t really care about you,” said Jacalyn F. Barnett, a Manhattan-based divorce lawyer. “No one cares more about the things you do than the person that used to be married to you.”

I've written about the importance of protecting yourself from private snoops not only for its own sake but because courts will look to how you have guarded your private information when the government seeks access to that same information.  This Times story does nothing to change my mind on that front.

But it also raises a number of other legal and ethical issues for divorce lawyers.  What are the responsibilities of a divorce attorney with regard to the snooping of her clients?  Should she encourage her clients, once they have decided that they are going to file for divorce, to gather every piece of evidence that the law would allow?  Should she turn a blind eye to snooping that crosses the line to illegality?  An even harder set of questions arises when the client suspects but can't (yet) prove infidelity; the article makes clear that once a spouse has crossed the line from suspecting to snooping, the relationship may be doomed regardless of what is ultimately found.  At a minimum the article makes clear that divorce attorneys have an obligation to inform themselves regarding both the law and technology of surveillance. 

Finally, it's clear that cheaters are fighting technology with technology.  A French (of course) website offers to help cheaters by providing a documented alibi -- well-timed phone calls, restaurant receipts, etc. -- for a fee.   The ethical issues here are a little clearer.