In a copy written story by Brad Stone in the September 15, 2007 edition of the New York Times, Mr. Stone gives us an insight into the new world of divorce evidence and eavesdropping. Straying spouse’s whereabouts, activities and indiscretions may now be permanently recorded by electronic records, cookies and billings. Even password-protected computers can be accessed by readily available software, which can either record or even forward e-mail communications.
Cell phone records can trace a person’s hour-by-hour location. And, invasive spouses can surreptitiously receive snapshots of their husband/wife’s computer screens with 15 seconds of an e-mail or instant message. According to the article divorce attorneys across the country admit that their files are filed with intercepted, recorded or "recovered" information.
How and if the materials can be properly utilized as evidence is another issue. How such information conflicts with a person’s right to privacy is, perhaps, a much bigger issue. Taken beyond the prurient interests of such communications, larger issues also arise as to how the inadvertent disclosure of other private communications captured in the process may or may not be utilized by the intercepting party. Sensitive business conversations, trade secrets, corporate inside trading information and similar materials captured in the process raise serious privacy and wiretapping issues.
The admonition should be to avoid mere curiosity, the effort to gain an "edge" ion the litigations and error on the side of caution until there is more authority as the legal implications of the interception or retrieval of such information. In the vast majority of case the information obtained may be interesting, but is likely to be of limited legal value and could result in serious negative consequences to both the attorney and the client.