In the way back, I almost never had to question a client about the legalities of how incriminating evidence had been discovered. Now, as soon as I begin the hear the specifics, I go "whoooa!" and I hold up my hands "stop!" Nowadays I need to ask many questions, some very precise and technical about how the incriminating evidence has been gathered. How the information has been obtained matters. Here are some guidelines about information from SMART PHONES:
If ALL four of these are true: 1) you are living with your spouse; and, 2) your spouse has given you his/her password; and, 3) the smartphone is marital property; and, 4) owned by your spouse and not a business; you can permissibly gain access to the smartphone & its contents.
Do NOT under any circumstances whatsoever install any spyware.
If your spouse has changed his/her password and has not given you the new password, you may not “guess” and thereafter use the information discovered.
If your spouse has a smartphone that is issued by a business, or if cell or data service is paid for by your spouse’s business (including your spouse’s individual business), you may NOT access the internal information even if you know the password, unless there are extenuating circumstances (like your spouse has explicitly given you the password and/or lockcode, or the phone is open to a text exchange, for example. In this case you can photo the display but it is not an invitation to go trolling in the open phone.)
If the smartphone you now use was a gift to you from your spouse (or other third party); be wary, especially if your spouse seems to know too much about your movements, whereabouts, or activities. It may have spyware, locator services, GPS, or other monitoring applications enabled. Do not destroy the smartphone but no longer use it. Purchase another mobile device yourself and obtain your own service plan. Give your gifted smartphone to your lawyer for forensic examination; however, spyware is stealthy so it can be very difficult to find.
On your service plan and/or in your “settings,” make sure your “location services” are NOT enabled. Set GPS to “911” only. Create a strong, 8 to 12-character, new password (not a variation of a regularly used password) or enable a 2-step verification for your smartphone and your wireless account.
Mobile devices are commonly out in the open; sitting on dining tables; on bar counters; in a person’s lap. These devices may be in “record” mode and recording your entire communication but there is no visible sign that the recording is taking place. REMEMBER: No conversation is private anymore. [Remember Donald Sterling?]
For Phone-embedded location applications, like “find my phone,” if your spouse has given you the access information (login, password), and if your spouse has enabled the location services setting, and if the settings are still enabled, you may track your spouse’s phone. However, you must not take any action yourself to toggle any of these features on/off, or download any application, or do anything whatsoever with the smartphone to authorize geolocation information.
If you have appropriate permission and access to your spouse's phone, find the IP Address. Write it down. Discuss that information with your lawyer.
Home Networks. (See also Cloud Storage.) Your home may be equipped with a Cloud-based shared home network. Information that is stored in the cloud in the shared home network is accessible and usable so long as it is a shared network with a common password. Anytime an electronic device connects to your home’s wireless or electronic network, a unique identifier attaches. It may be possible to determine the identity of other devices that connect to the home network.
Synced Devices. Some devices are synced together so that the texts or emails, for instance, that you receive or send on your smartphone also appear on your linked tablet. Password protect your tablet or any other linked device, and disengage the link feature. For Apple products, this is located in Settings/General/Handoff.
Cloud Storage: If you and your spouse share a cloud storage plan and if the login credentials are shared, you may visit the cloud and inspect your spouse’s electronic information. If you have a shared cloud with your spouse, go to Settings on your computer and smartphone and deactivate “family share” or other settings that permit other people from seeing your electronic information or location.
Inadvertent disclosures are not necessarily protected information. For example, if your smartphone is synced with other devices, an iPad, for instance, and if your naked pictures sync to your other device, those pictures may be fair game in your family law case.
If ALL four of these are true: 1) you are living with your spouse; and, 2) your spouse has given you his/her password; and, 3) the smartphone is marital property; and, 4) owned by your spouse and not a business; you can permissibly gain access to the smartphone & its contents.
Do NOT under any circumstances whatsoever install any spyware.
If your spouse has changed his/her password and has not given you the new password, you may not “guess” and thereafter use the information discovered.
If your spouse has a smartphone that is issued by a business, or if cell or data service is paid for by your spouse’s business (including your spouse’s individual business), you may NOT access the internal information even if you know the password, unless there are extenuating circumstances (like your spouse has explicitly given you the password and/or lockcode, or the phone is open to a text exchange, for example. In this case you can photo the display but it is not an invitation to go trolling in the open phone.)
If the smartphone you now use was a gift to you from your spouse (or other third party); be wary, especially if your spouse seems to know too much about your movements, whereabouts, or activities. It may have spyware, locator services, GPS, or other monitoring applications enabled. Do not destroy the smartphone but no longer use it. Purchase another mobile device yourself and obtain your own service plan. Give your gifted smartphone to your lawyer for forensic examination; however, spyware is stealthy so it can be very difficult to find.
On your service plan and/or in your “settings,” make sure your “location services” are NOT enabled. Set GPS to “911” only. Create a strong, 8 to 12-character, new password (not a variation of a regularly used password) or enable a 2-step verification for your smartphone and your wireless account.
Mobile devices are commonly out in the open; sitting on dining tables; on bar counters; in a person’s lap. These devices may be in “record” mode and recording your entire communication but there is no visible sign that the recording is taking place. REMEMBER: No conversation is private anymore. [Remember Donald Sterling?]
For Phone-embedded location applications, like “find my phone,” if your spouse has given you the access information (login, password), and if your spouse has enabled the location services setting, and if the settings are still enabled, you may track your spouse’s phone. However, you must not take any action yourself to toggle any of these features on/off, or download any application, or do anything whatsoever with the smartphone to authorize geolocation information.
If you have appropriate permission and access to your spouse's phone, find the IP Address. Write it down. Discuss that information with your lawyer.
Home Networks. (See also Cloud Storage.) Your home may be equipped with a Cloud-based shared home network. Information that is stored in the cloud in the shared home network is accessible and usable so long as it is a shared network with a common password. Anytime an electronic device connects to your home’s wireless or electronic network, a unique identifier attaches. It may be possible to determine the identity of other devices that connect to the home network.
Synced Devices. Some devices are synced together so that the texts or emails, for instance, that you receive or send on your smartphone also appear on your linked tablet. Password protect your tablet or any other linked device, and disengage the link feature. For Apple products, this is located in Settings/General/Handoff.
Cloud Storage: If you and your spouse share a cloud storage plan and if the login credentials are shared, you may visit the cloud and inspect your spouse’s electronic information. If you have a shared cloud with your spouse, go to Settings on your computer and smartphone and deactivate “family share” or other settings that permit other people from seeing your electronic information or location.
Inadvertent disclosures are not necessarily protected information. For example, if your smartphone is synced with other devices, an iPad, for instance, and if your naked pictures sync to your other device, those pictures may be fair game in your family law case.