Published: New Hampshire Bar News
November 20, 2024
These days, technology issues and family law go hand in hand. Frequently, family law practitioners are told by their clients that they have procured the 'smoking gun' piece of evidence. If the client found the content on their spouse's phone, computer, or social media, then the practitioner must determine the 'how' before using this information. The 'how' will not only determine potential admissibility at trial, but also can avoid criminal implications.
An in-depth understanding of two key federal statutes is not just beneficial; it's crucial. The Computer Fraud and Abuse Act, Title I of the Electronic Communications Privacy Act (EPCA), and Title II of the EPCA - the Stored Communications Act, play a significant role in using technology in evidence gathering. For instance, the Computer Fraud and Abuse Act prohibits the intentional access of a computer without authorization, which could include unauthorized access to online accounts like e-mails or social media accounts. Simply put, unauthorized access to a spouse's personal computer or phone is criminal. Therefore, it's not just advisable; attorneys must be well-versed in the Act to be informed and prepared for any legal implications.
The Electronic Communications Privacy Act regulates intercepted electronic communications and unauthorized access to communications. The Act specifically does not provide 'interspousal immunity' because, as a fair number of courts have concluded, each spouse has an individual expectation of privacy...
