Smart Homes and Divorce

People now have the ability to interact with their homes in a way that wasn't even imagined ten years ago. We now have the ability to control things when we are away from our homes. We can turn lights and appliances on and off. We can change the temperature in the home by controlling the thermostat.  We can set off alarms, activate cameras and look inside the home, and speak through devices to people in the home and outside. We can track cars and cell phones. We can even monitor driving habits.

All of these smart applications are designed to make our lives better. However, they can allow a new type of abuse and harassment when a couple split up and one partner moves out of the home. The person out of the home can now control all of these devices and use them to annoy or abuse the partner in the home. Imagine the distress created if one partner finds out that their whereabouts have been tracked by a smart application on their phone or car. People can be hit with large heating and utility bills if the heat is turned up or lights turned on when a person isn't home.

No matter how much trust exists within a marriage, precautions should be taken when a couple separate. The first thing that should be done is to change all passwords for all devices. You may be able to block the other partner from using the applications. All accounts for these items can be transferred into the name of the spouse in the home. The other thing that can be done is to get a court order that prohibits the other person from using the applications.

In most divorces, the partner remaining in the marital home obtains a court order that gives that person exclusive use of the home. Sometimes a similar order issues for use of cars. It is a simple matter to add language that prohibits the other partner from using any smart applications or devices that impact the home, car, or cellphone. Violation of this order can result in sanctions from the court.

Perhaps the biggest fear is that one spouse can track the movements of the other and then use this information in court in a divorce trial. Obtaining an order that prohibits use of the tracking applications should prevent any use at trial of this type of information.

Any time a household breaks up and results in a divorce or other litigation the parties should consult an experienced family law attorney. This attorney can give advice and propose a course of action to minimize problems from smart technology and to obtain a court order to prohibit abuse by smart technology.

A search of a computer for “communications” includes photographs.

In a recent case in Massachusetts a court ruled that a search warrant issued for a computer (in this case an iPhone) properly included a search for photographs. The search in this case arose out of a shooting on a city street between two men. The police obtained information that the defendant, believed to be one of the two men involved in the shooting, had received threatening telephone calls and texts on his cell phone. As a result, they obtained a search warrant for the cell phone which included “saved and deleted photographs” on the iPhone. The police found incriminating photographs on the cell phone.

The court found that photographs can constitute communications. The defendant admitted this point so the court did not discuss the point. A famous quote says that “apicture is worth a thousand words.” This point is proven every minute as people attach photographs and video to texts and emails. They post pictures and video in social media. Video cameras constantly provide information over the internet. I can't imagine a good faith argument to dispute the fact that photographs are communicative. Once the argument is made that a photograph can constitute communications then it seems inevitable that a search warrant for communications should include photographs.

Many people think that a search of a cell phone occurs by a police officer manually searching the phone to look for texts, emails, photographs, etc. While this can occur, that is not how the police searched in this case. The police used a Universal Forensic Extraction Device (UFED) to access the device and to extract the information. A UFED bypasses the password lockout feature of the cellphone and allows a targeted search of the device. It can search all areas of the physical phone as well as all cloud based accounts accessed by the telephone. As the search is targeted the police didn't receive a copy of all information on the phone and its services but only such data as the UFED found responsive to the targeted search. A properly targeted search prevents the police from browsing the entire phone and obtaining information outside the scope of the search warrant. A UFED search based on permissions granted by a search warrant should be permitted.

Police routinely search cellphones in arrests on serious crimes. There are many restrictions on the ability of police to search phones. If you have been arrested and the police seized your cellphone or computer you should consult a lawyer to analyze the method, scope, and reasons for the search. Failure to act promptly can result in improperly seized evidence used to obtain a conviction.

Does Massachusetts have a remedy for revenge porn?

For many people, sending a naked picture of yourself to someone is an act of commitment. It shows the degree of affection and trust by sending a picture showing oneself in their most vulnerable exposure. Yet this act of trust can become a nightmare if this picture is posted on the internet. A posting of this nature is called “revenge porn.” It frequently occurs when the relationship terminates. Not only can a posting of this nature cause emotional distress, it can also cause financial harm as it can effect employment and future relationships. Wikipedia definesrevenge porn as “sexually explicit media that is publicly shared online without the consent of the pictured individual.” It includes selfies showing a person naked as well as explicit pictures of sexual conduct.

The best way to prevent revenge porn is to not create explicit pictures of yourself. If the relationship that is terminating is a marriage, then the parties may be able to obtain a court order prohibiting distribution of pictures. I have named such orders as “sexting restraining orders” and routinely include such language in my divorces. However, most people who are concerned with revenge porn are in the horrible position of trying to take action once a posting has occurred.

Some states have created laws that impose criminal penalties for revenge porn. Massachusetts has not created any law, civil or criminal, that specifically addresses revenge porn. Instead, a victim of revenge porn, must look to other remedies after their picture appears on the internet.

A civil lawsuit against the person who posted the pictures for damages can be filed. Such a suit can seek damages for intentional infliction of emotional distress or violation of a right of privacy. However, such a lawsuit can only result in a money award against the person who posted the information. If that person has no assets or files bankruptcy, the judgment may result in no recovery of money. A better way to proceed is to sue the web site that hosts the offending pictures.

Congress created broad protections for web site operators in the Communications Decency Act. However, web site operators are not protected against copyright violations. Under federal copyright law, a picture is the property of the person who created or took the picture. A selfie remains the property of the person who took the picture and not the person who received the picture in a text message. If a selfie appears on a web site, the web site operator can be sued to remove the picture as a violation of copyright law. Unless new laws are passed, this may be the only way to force the removal of the picture.

If you want to prevent revenge porn or find yourself the victim of revenge porn you should consult a lawyer as soon as possible to limit the damage.

In Massachusetts, search warrants are required to obtain Cell Phone Location Data.

If you watch police shows on tv you have seen episodes where the police go to their computer and pull up a suspect's cell phone's number and then access cell tower information and show the physical location of the suspect. This scenario is somewhat different from real life in that law enforcement needs a court order to obtain this information. However, under theFederal Stored Communications Act (SCA) 28 U.S.C. § 2701, it is very easy for law enforcement to obtain this information. If the police show a reasonable suspicion, then under the SCA, they can obtain a court order to obtain access to cell phone location information (CSLI). As of February 18, 2014, in Massachusetts, police need more than reasonable suspicion. They need probable cause. This is the same standard that police need to obtain a search warrant to search a person's home.

In the case of Commonwealthv. Augustine, 467 Mass. 230 (2014), police, investigating a murder, sought and obtained an order for production of CSLI under the Federal SCA to "possibly include or exclude" the defendant "as a suspect.” The Court ruled that police must obtain a search warrant based on probable cause to obtain CSLI.

CSLI data is collected and maintained by cell phone companies in their ordinary course of conducting business. As a third party, the police may request the company to produce the information and, if they comply, would not violate any defendant's rights. However, companies don't have to produce this information as the SCA provides that companies can require court orders before producing this information. When police seek a court order, then the government is compelling the company to provide this information. Under these circumstances, the government is intruding into the private lives and expectations of people and need a warrant based on probable cause.

The Massachusetts court recognized that cell phones have become "an indispensable part of modern [American] life. It is also clear that cell phones act as GPS devices and track the movements of the user of the phone as they travel. The court wrote that “there is no question that it tracks the location of a cellular telephone user.” Americans should not have to worry about the government, as Big Brother, tracking their every movement. As such, at least in Massachusetts, police need a search warrant if they want to use cell phone data to track the movements of a suspect.

Any person who is arrested for a crime and it appears that the police used CSLI to gather evidence should hire an experienced criminaldefense lawyer to defend them.