Your Tech….Your Phones, Ipads, Tablets and Laptops and How They are Impacting Lawyers in Family Law

Several of our staff attended a seminar last night run by the Family Law Pathways Group and today see them being mentioned and quoted in an article today about victims of domestic violence being stalked via mobile phones.

The general concern amongst professionals and support people in family law and domestic violence circles is that the phone and tech that we carry and use almost 24/7 can be readily used against us.

As a result of having personally seen some of this tech in action, this is not a fancy scaremongering topic designed to spawn a new industry and it’s not a conspiracy theory either.

Examples of How Technology Can Affect Family Law Matters

Let’s talk about some examples we’ve seen just in our family law practice:-

• The “on the surface” normal notion of a spouse being bought a phone by their partner. By reason of the device’s location sensitive settings and the wide variety of applications and also because of the iCloud storage methods, simply using the device is capable of informing your partner (who generously gave you the phone and pays the bills) the following information:-
  • Where you are 24/7 whilst the phone is switched on;
  • The ability to download all pictures you take;
  • The ability to read all messages sent, received and logged;
  • The ability to read all emails sent, received and logged;
  • The ability to backup a copy of your phone to the cloud on a daily basis;
  • The ability to install applications which can record sounds, speech and calls.
• The installation of key-logging software, which permits a person to monitor computer use, including user names and passwords you might use to access sites like your Hotmail account or Gmail account or your internet banking. The product of this is clearly the possibility of:-
  • Funds being taken from your accounts;
  • Username and Password changes which might lock you out of your own accounts;
  • Identity theft; and
  • Impersonating someone to send emails, make social media posts, conduct internet banking or similar transactions which are not in your interests – just to name a few examples.
• The review of legal advice or other sensitive email or electronic communications which were meant to be private or privileged, which may mean that:-
  • Your “next move” has been telegraphed;
  • Your legal advice which might advantage you has been foretold and planned for by the other party which hampers your ability to negotiate or conduct the matter normally; and
  • Your movements and the places you intend to go/people you intend to see/steps you intend to take are mapped out in a forward diary fashion for the person monitoring you to see.
• The use of remote access to your computer, where the person accesses your computer and it is theirs to view, use and download or install information or applications, including other monitoring software.

Invasion of Privacy and Its Consequences

The personal and emotional impact of this sort of behaviour is difficult to explain. Whilst it is difficult to explain, it is so readily identifiable as a massive problem with deeply negative personal, health, financial and emotional consequences.

It is certainly an invasion of a personal privacy. It is such a deep invasion, often of the most sensitive information you have in your life, that the prospect of someone knowing the information and exploiting it is of very deep and significant emotional impact.

It goes without saying that there is a complete loss of trust involved and often impacts a person so deeply that they suffer a withdrawal from their normal life, friends or habits.

The quicker and quicker that there are technological advances and developments, the more options are available to people with bad intentions who wish to set about to stalk, harass, follow or monitor someone.

It may well surprise many of you that the domestic violence legislation defines, as an act of domestic violence, the unauthorised monitoring of someone.

I’m the first to acknowledge, that as a lawyer who has been working in family law for 21 years, what I read most for further education, is limited to decided cases coming from the Australian Courts. I’m not turning my mind to spy tech or software applications which can be used against my clients or to be of impact in family law or domestic violence matters.

Recommendations for Our Family Law Clients

However, over the past 12 months, we have seen enough to warrant there being a general recommendation to all of our clients to be aware of one more danger – and that is the danger of the intended or unintended ability of someone to monitor a client by devices and technology.

It follows that in addition to taking some practical steps, there is likely to be an expanding need to refer clients with concerns or those who have already experienced stalking-like or controlling behaviours, to consider having a personal consult with an expert to ensure that they are neither being monitored or personally/financially undermined or at risk of same.

Clients who find themselves separating should already be thinking about:-

• Using a separate computer which has been checked for key logging software;
• Obtain their own apple id and remove any other apple id access from the devices they will use;
• Consider getting a new computer or phone altogether;
• Check who owns the equipment or phone account as access can be obtained via the tech supplier or phone provider (eg Telstra);
• Remember what will show up on bills (eg phone bills) going to the other party;
• Have emails sent somewhere secure (it’s no good paying a lawyer to help if the advice and strategy is going to be shared);
• If you must use the same equipment:-
  • Disable location services and remove the Find my iPhone application;
  • Remove applications you don’t use or understand or which have recently popped up;
  • Consider a change of SIM card;
  • Change passwords to everything and consider a change of username or a new email account (you can always forward emails coming to the old email accounts); and
  • Have the device checked for software running in the background or hidden.
• This advice is in addition to changing addresses for people who send you accounts, changing internet banking codes and passwords and ensuring your identity documents are safely stored with you to prevent access and use in identity theft.

Other Instances of Misuse of Technology We Have Encountered

You might have gotten to the end of this piece and wondered about what we’ve seen and heard. Here are some titbits:-

• Made up emails asserted to have been sent and received;
• Installation of pinhole cameras to spy on the home when the spouse is out (including in areas where the spouse would be changing) – retention of login ability from anywhere in the World to watch live and DVR recording for retention purposes;
• A full knowledge of the legal advice provided and the capacity to share the legal advice provided with the other spouse’s adviser so as to be one step ahead;
• A spouse turning up at pre-ordained private meeting places where a meal or outing had been planned;
• Following a spouse;
• Transferring money out of accounts;
• Making posts to social media and sending emails pretending to be the other party – often with a view to ruining a reputation or friendship and causing a loss of actual support and interpersonal conflict; and
• Using information learned of by monitoring in parenting proceedings in an out of context manner.

Finally, there is one thing that I wanted to make plain given that I am a faithful observer that if we are going to be outraged, then the outrage should be appropriately placed….it does make me very concerned that the media, the media releases and the comments made by social commentators are directed to the view that “men” are conducting themselves in this manner.

I can say from the point of view of my professional experiences, that the conduct of domestic violence, and particularly surveillance and computer tech arrangements, are most certainly not limited to men behaving badly.

There is indeed a need to ensure that when we ensure that domestic violence is placed in the sights of the public at large as a “must fix” and “must action” issue, then it must be focused on ensuring fairness between the sexes and to ensure that men are afforded not only rights of natural justice, but also the proper acceptance that women are also, in more than a smattering of instances, committing acts of domestic violence which are unintentionally downplayed by investigating police, support networks and services in this area, because a focus is elsewhere.

As a lawyer, the tech issues are quite a burden clients and lawyers have to think about, but an important one to put in focus if we are to avoid all the forms of unpleasant consequences which could flow from ignorance of them.

Thanks for reading,

Dean Evans