Written by Admin | Oct 19, 2017 5:00:00 AM
CHICAGOLAWBULLETIN.COM WEDNESDAY, OCTOBER 18, 2017 ® Volume 163, No. 203 Serving Chicago’s legal community for 162 years Nasty divorce litigation opens doors to threat of cyber exposure I t is virtually impossible to Many divorce litigators have Additionally, assume for exam- watch the news or open a seen this situation become reality MODERN FAMILY ple that Spouse A used the fam- modern mainstream mobile and thus know the corresponding ily’s smart-home audio-video news app without seeing a legal implications on both federal recording devices to record pri- headline concerning cyber- and state levels. vate telephone conversations of s e c u r i ty. Federal law Spouse B in a bedroom or office. Recognizing the importance of The Electronic Communica- The Eavesdropping Act may be cybersecurity, October is the De- tions Privacy Act, 18 U.S.C. Sec- BRETT M. invoked to render the recordings partment of Homeland Security’s tion 2510, et seq., is a federal BUC K L EY illegal and thus excluded from National Cybersecurity Awareness statute with three components l i t i gat i o n . Mo n t h . dealing with electronic communi- The takeaway for divorce lit- The growth of modern society’s cations, two of which are relevant An associate attorney with Schiller igators and clients is threefold: reliance on technology and con- h e re. DuCanto & Fleck LLP, Brett M. Buckley First, given the increasing risk nectivity is undeniable. This First, the Wiretap Act (Sec- represents business owners, executives, of exposure to cyber breach in growth perpetuates increased risk tions 2510 to 2522), prohibits, in professionals, celebrities, professional varying forms, it is good practice athletes, people with multigenerational for cyberattack, electronic mon- summary, the intentional or at- to advise clients at the outset of a wealth and their spouses in divorce and itoring and surveillance and data tempted interception or disclo- divorce case to take defensive custody disputes. He can be reached at breach. A notable recent example sure of any wire, oral or elec- bbuckle y@sdflaw.com. measures, such as changing pass- is the Equifax data breach, which, tronic information. words to cellphones, personal according to Federal Trade Com- Second, the Stored Communi- computers, e-mail and other on- mission, affected more than 143 cations Act (Sections 2701 to 2712) other parties to the private con- line accounts. million American consumers with prohibits intentional and unautho- ve rs at i o n . Where families operate on a credit reports. rized access of a facility providing The Eavesdropping Act defines shared cell and data plan, clients Not surprisingly, the abuse of electric communication services. a“private conversation”as any should be advised to either re- varying forms of technology is be- Also of note is the Computer oral communication between two strict or disable account access so coming more common in divorce Fraud and Abuse Act, 18 U.S.C. or more persons, whether in per- as to avoid one spouse’s unau- l i t i gat i o n . Section 1030, which, in summary, son or transmitted by wire, where thorized access to messaging fea- With access to genuine infor- prohibits a party from accessing there exists a reasonable expec- tures through multiple platforms mation a click or two away, with another’s computer without (or by tation of privacy and a “p r i vat e (e.g. iMessage access on an iPad little cost, effort and technical exceeding) authorization. The act electronic communication”as any linked to the same account as a skill, a spouse in contested divorce applies to computers utilized in transfer of signs, writing, images s p o u s e’s iPhone). litigation can uncover e-mails, text interstate or foreign commerce, or sounds where the communi- In certain cases, clients should and video messages, transcribed which includes any computer con- cation is intended to be private be advised to set up credit mon- voicemails, photographs, videos, nected to the internet. under circumstances reasonably itoring alerts aimed at notifying audio-recordings and financial and Illinois law justifying that expectation. (720 the registrant of any alterations to other information. In response to the Illinois ILCS 5/14-1(d)(e)). existing accounts or opening of The following is a typical ex- Supreme Court’s ruling in Pe o p l e In the hypothetical, Spouse A’s new accounts. ample of potentially illicit infor- v. Clark, 2014, IL 115776, and Peo - accessing Spouse B’s computer, Second, cognizant of the legal mation gathering: Spouse A sus- ple v. Melongo, 2014 IL 114852, the intercepting e-mails and instal- authority referenced herein, prac- pects Spouse B of extramarital in- legislature recently amended the lation of spyware may be a vi- titioners must be cautious in the fidelity and financial impropriety. retention or transmittal of illegally Acting on that suspicion, Spouse obtained information from clients A accesses Spouse B’s computer ... take defensive measures, such as changing through mechanisms like those and e-mail accounts with a pass- employed by Spouse A. passwords to cellphones, personal computers, word found written in Spouse B’s Third, clients in divorce litiga- daily planner, which is typically e-mail and other online accounts. tion may not be the only people kept in Spouse B’s briefcase. perpetrating a cyberattack. In Along the way, Spouse A in- representing certain high-net stalls spyware on Spouse B’s com- Illinois Eavesdropping Act (720 olation of all three federal acts to worth or high-profile clients with puter. Next, Spouse A, having pre- ILCS 5/14, et seq.), which provides varying degrees depending on confidentiality at an ultra-premi- viously seen Spouse B enter the that a person commits eavesdrop- the level of access and subse- um, a divorce litigator and their six-digit password, “borrows with- ping when they knowingly and in- quent transmittal. law firm should be proactive in out permission”and accesses tentionally use an eavesdropping Likewise, Spouse A’s accessing cyber defense, through for exam- Spouse B’s iPhone to obtain text device in a surreptitious manner Spouse B’s cellphone for text and ple, installation and maintenance and other messages. to overhear, transmit, record or other messages may violate the of protective software and hard- Armed with the spoils of es- transcribe any private conversa- Wiretap Act, and if Spouse A in- ware encryption as well as firm- pionage, Spouse A schedules an tion or private electronic commu- tercepted telephone conversations wide cybersecurity training, to appointment with a divorce nication to which he or she is not through the use of spyware, ar- avoid both general and targeted l aw ye r. a party without the consent of all guably the Eavesdropping Act. c y b e rat t ac k . 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