December 01, 2019 Best of ABA Sections

The Perils of Spyware

Family Law Section

Fernando M. Luna

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The broad range of issues involved in family law is unparalleled. We communicate with clients via e-mail, telephone, and in-person meetings about sensitive and personal issues and strategies for presenting their cases. We vigilantly endeavor to safeguard the attorney-client privilege.

What if the opposition had access to your client’s communications and whereabouts and could even listen in on your attorney-client communications, all without anyone knowing? How could this happen?

Types of spyware. One common variety of spyware includes programs that we knowingly install on our own electronic devices. These include GPS trackers; cell phone apps; car apps; smart home security systems; and family-shared apps that capture contacts, call logs, personal information, and SMS messages. Other varieties of spyware are surreptitiously installed apps or programs, such as keyloggers, downloaded malware, or remotely installed monitoring apps.

Previously installed apps. Many couples have interlaced digital lives, sharing bank, credit card, social media, and online accounts. They knowingly and willingly install software onto their electronic devices that provide them with easy access to their accounts. Their mobile phones might have apps installed for home security, location services, shared photo accounts, shared file storage accounts, online banking accounts, and shared messaging accounts. Sharing such apps and accounts might commence as a convenience to a couple, but they are essentially tools that track activities, locations, and purchases.

Smart home apps offer features such as automatic door locks, automated lighting systems, and surveillance systems. You can remotely listen and view any area covered by the camera in real time or from a digital recording of past events.

Vehicle-connected smartphone apps allow drivers to find their car’s exact location on a map, lock or unlock the doors from anywhere, and access the navigation system, which often displays previous routes. Location-based services identify the location of a person or object. Such apps store additional information about locations visited, including the date, time, and duration of the visit. They can provide in-depth information about each family member’s driving habits and can even access 30 days of family members’ location history.

These apps can become problematic for the party in a divorce proceeding who fails to disable the apps, revoke access by the other party, or change the password, access code, or log-in information. Without these changes, the other party will continue to be able to access the apps or joint accounts and can use them to wrongfully listen in on private conversations, view without consent, and, generally, spy.

Surreptitiously installed apps. More nefarious spyware can remotely record phone calls, capture keyboard outputs, and track financial information. Variations on this type of spyware can allow access to a mobile device’s camera and microphone. A phone can be set in “listening mode,” even during a meeting occurring miles away.

One maker of such apps dubs itself “the only cell phone spying company that offers one-of-a-kind Remote Installation Support.” This app can record and listen to phone surroundings by accessing the device’s microphone.

This type of app can be installed surreptitiously when the target opens a disguised e-mail attachment containing the spyware installation file. The target could also be sent a link that, once clicked, leads to a site that installs the app on the device.

Information obtained via spyware: Admissible in court? Many jurisdictions have statutes that make evidence collected by eavesdropping inadmissible. Information obtained through the use of spyware would certainly fall into the ambit of illegally obtained evidence. However, if a party knew or should have known that the other party had access to a previously shared app, home security system, or location information, would such evidence still be considered illegally obtained? The answer to this question is not well settled.

When your client wants to spy. A prudent practitioner should advise clients not to use any form of spyware to collect information. Spyware use may result in violation of your jurisdiction’s penal code and civil statutes. Accepting illegally obtained evidence may make you, the lawyer, a party to wiretapping and intercepting electronic communications and subject to criminal or civil liability.

Accessing a home security camera or webcam or using cell phone cameras in situations where an individual has a reasonable expectation of privacy is illegal. Surreptitiously installing spyware onto another person’s computer or cell phone is illegal. With limited exceptions, recording telephone conversations without consent is illegal. Tracking another person with a GPS device is likewise illegal, unless there is consent.

How to detect spyware. Spyware is relatively inexpensive to install and very expensive to detect and remove. Anti-virus and anti-malware detection programs are generally behind the curve and fail to detect spyware. So how do clients know if they are victims of spyware? Generally, clients will have the sense that the other party simply knows too much about them. This is a sign that something is amiss. You could ask a party during discovery to admit that he or she has used spyware or has access to apps that share personal information about the other party.

It is incumbent on the practitioner to discuss with a client whether the other party has access to his or her e-mail, online bank accounts, location services, home security system, or smartphone apps. Questions during a consultation about such online accounts can help prevent an intrusion. Inquire about home security system access and suggest changing passwords and disabling accounts.

Protection of evidence and communications. Many practitioners advise their clients at the outset of the litigation to turn off their social media accounts. Any advice to do so should not instruct the client to delete the account or any evidence. Known as spoliation, evidence loss or destruction may be punishable in a number of ways. Criminal and disciplinary penalties have evolved to punish any individuals involved in spoliation, including attorneys.

As family law practitioners, we must focus on helping our clients safeguard their private and sensitive information and on keeping our communications with our clients secure. While some information obtained by spyware is discoverable, the proper discovery procedures should be utilized to obtain any nonprivileged, relevant information.

Tips for keeping digitally secure. We should advise our clients to be security conscious at all times: Avoid clicking on suspicious links. Avoid downloading software or applications from unreliable sources. Use reputable security software to keep yourself constantly protected. Keep up with operating system updates. Use strong passwords to protect your accounts. Change app and account passwords and access codes. Change security questions to reset passwords. Open a new e-mail account. Change banking passwords. Update security questions. Use two-factor authentication, when available. Disable location services and family sharing services.

ABA Family Law Section

This article is an abridged and edited version of one that originally appeared on page 14 of Family Advocate, Winter 2019 (41:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Website: http://americanbar.org/family

Periodicals: Family Advocate, quarterly magazine (three issues with how-to articles and current trends and a fourth “Client Manual” issue for lawyers and clients); Family Law Quarterly, scholarly journal; Case Update, monthly electronic digest of family law cases nationwide; eNews, monthly electronic newsletter.

CLE and Other Programs: Monthly webinars; spring/fall conferences; ABA Family Law Trial Advocacy Institute, family law’s premier trial training program.

Recent Books: 101+ Practical Solutions for the Family Lawyer, 4th ed.; The Military Divorce Handbook, 3d ed.; The Complete QDRO Handbook, 4th ed.; The Forensic Accounting Deskbook, 2d ed.; The Family Law Guide to Appellate Practice.

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Fernando M. Luna

Fernando M. Luna, of the Law Offices of Fernando M. Luna in Pasadena, California, focuses his practice on family law.

Published in GPSolo magazine, Volume 36, Number 6, November/December 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.