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Divorce, Data Style

Who are you going to believe, me or your lying iPhone?

For generations, the telltale signs of a lover’s cheating were devastating, but simple. And low-tech.

Roosevelt biographers point to Eleanor finding a bundle of steamy letters from Lucy Mercer to Franklin as she unpacked his suitcase in 1918. The Clinton sex scandal was told through conversations replayed on cassette tapes and the infamous stain on Monica Lewinsky’s dress. Maria Shriver reportedly confronted Arnold Schwarzenegger during marriage counseling over the existence of a love child conceived with the family’s longtime housekeeper.

Today, divorces and infidelity investigations increasingly eschew such personal touches. Instead, as divorce lawyers report, they center around digital forensics, involving data gathered from wearable devices and smartphone applications such as Find my iPhone and mSpy. This unintended consequence of modern data gathering shifts the discussions over large societal questions about digital privacy to intimate ones of emotional privacy, leading to bizarre moments of Orwellian heartbreak.

“It’s the digital lipstick on the collar,” says Sam Hall, a U.K.-based divorce lawyer.

The apps say they will keep track of your kids but, often, they’re used to expose unfaithful lovers.

The issue of tell-all data trails surged into public consciousness in 2011, when a man claimed he used Apple’s Find My Friends app to place his wife uptown near a suspected romantic liaison rather than downtown, as she had texted to her husband. “These beautiful treasure trove of screen shots going to play well when I meet her a$$ at the lawyer’s office in a few weeks,” he wrote in a MacRumors.com post that went viral.

That same year, the popular health and fitness app Fitbit triggered an outcry from users and privacy experts when the company accidentally set “public” as the default privacy setting and unwittingly revealed some of its users’ sexual activities on profiles that were just a Google search away. Fitbit did not respond to a request for comment.

Fueling this phenomenon, of course, is the popularity of tracking applications and wearable devices. One in six consumers said they currently use wearable tech in their daily lives, according to a 2014 survey from Nielsen. Despite the failure of Google Glass, consulting firm Deloitte estimated the wearable market is currently generating $3 billion and that there will be 100 million wearable gadgets on bodies by 2020. The digital stalkers take advantage of the fact that those being tracked often have no idea that they are being monitored, or that they can disable location services.

If spouses are using data from wearable devices to track one another, it’s fair to say the union is already precarious. But sometimes the monitoring isn’t even intentional.

For example, Hall described a married client who went away for a friend’s bachelor party, during which he exchanged sexually explicit messages with a woman who was not his wife. When he returned home, Hall said, iCloud kicked in and his young son and wife were shocked when they opened up their iPad and saw the images, which had accidentally made their way onto the shared cloud.

“Sometimes, there’s someone who is tech savvy and can become a super sleuth,” Hall says. In other cases, “you have a technological dunce who gets called out.” Yet the more common scenario is that technology is simply way ahead of the average person’s understanding of it, says James T. McLaren, a divorce lawyer in Columbia, S.C., and president of the American Academy of Matrimonial Lawyers.

The Academy does not keep a count of divorces involving data tracking, but a 2012 survey found that 92 percent of divorce attorneys reported an increase in the number of cases using evidence from smartphones in the previous three years. Another survey from the group found that 81 percent of divorce lawyers had seen an increase in cases involving social networking evidence over the previous five years.

Data from wearables is beginning to make its way into personal injury cases, and GPS data has been around for years in various forms. Last year, lawyers representing a Calgary woman submitted Fitbit data to show how her physical activity level as a personal trainer had dramatically decreased after she was in a car accident, according to Wired. (Similarly, “Serial” fans will recall the controversy over the use of cell phone tower pings in Adnan Sayed’s case.)

Typically, data gathered from wearable devices and apps — heart rates, locations, text messages and emails — does not get submitted as evidence, McLaren said, rather it may be used to secure evidence. Today’s tools may not be enough for a court to conclude that someone is in the throngs of passion with a paramour. But data showing, say, that someone in a divorce proceeding is near the address of a suspected lover with an elevated heart rate, is probably not ideal for someone in court, either.

McLaren offered a hypothetical example of a husband who saw that his wife was at a particular unknown address with some regularity, who then could use that information to dispatch private investigators to survey the premises. The result of that surveillance, rather than the original data tip-off, may be submitted to court.

The legality of tracking someone else, even a spouse, can be fuzzy. Some couples are going rogue and monitoring data themselves, lawyers told me. They’re installing tracking applications or seizing information from wearables, which may not always be legal. If potential clients approach McLaren with questionably secured intelligence, he said he declines to represent them because it may present risk to him as a lawyer. “I’m just as culpable as the person who did it,” he says. “No client is worth that.”

Normally, a police officer who wants to monitor someone must acquire a subpoena, says Harry Houck, an investigator focused on matrimonial work. They don’t have permission to install tracking software. But because many devices and smartphones are jointly held in both spouses’ names, either partner may be able to legally install tracking software on them.

“We can't use that kind of stuff,” Houck, a retired New York Police Department detective, says. “But husbands and wives do it if they both own the phones.”

And technology keeps making it easier to snoop. The current iteration of devices is focused on “hyper tracking,” Jeff Chester, the executive director of the Center for Digital Democracy, says, meaning that our data trails are only growing more refined and more real-time, making it easier for both large corporations and jilted spouses to monitor a person’s actions.

“We’re being encouraged to use and wear these things 24–7,” Chester says. “It sounds innocuous — just your heart rate, where you spend, where you go,” he adds. “But people can put the pieces together.”

Clients seeking data on infidelity are often looking for “peace of mind” rather than legal evidence, Scott Lewis, a Michigan-based private investigator, says. “They have strong suspicions cheating is going on,” he says. “But they want to know it for themselves before they confront someone. They want airtight information.”

Infidelities aside, new technology may be unraveling traditional clues or contested things like hidden assets in a divorce proceeding, Gary Traystman, a divorce attorney in Connecticut, says. Online banking records or even medical histories or correspondence relating to mental health may also make its way onto a smartphone and into the hands of a divorce court. Traystman says he found evidence of a client’s husband who had an investment account and real estate holdings in Chicago that were not previously disclosed, but came through tracing his emails. Another case involved a series of communications with a real estate agent in Jamaica, triggering the uncovering of another hidden asset. Traystman says he also once found a spouse unloading merchandise on eBay, including gold coins and a tractor, in order to obtain more cash. “Nothing is ever erased,” Traystman says.

Among the more popular tracking options are those that are often marketed for monitoring the whereabouts of children, such as Trick or Tracker or Phone Tracker. Another, mSpy, is marketed as a “user-friendly application for watching over your kids, preventing theft, and supervising your employees’ performance,” according to the company’s website. For $39.99 a month, mSpy can collect keystrokes, screenshots, GPS location data, call and text logs and information exchanged using SnapChat.

It is an mSpy user’s “responsibility to determine whether you have proper authorization to monitor a given device,” the company explains in its FAQ. MSpy did not return requests for comment.

Yet in many cases, shoe leather reporting still wins out. While the data from many tracking apps and wearables can tip off investigators, they have proven less accurate when conducting a stakeout or following an alleged cheater. Lawyers and investigators also tell clients to expect a certain margin of technical error when analyzing data.

Credit: Rebecca/flickr

“You follow people in New York and that’s a rat race in itself,” says David Schassler, a private investigator and expert in “matrimonial investigations” and “ethical hacking.” “In Manhattan during rush hour, these trackers can be two blocks off and throw you in the wrong direction.”

Schassler estimates that 70 percent of the calls he receives are inquiries into investigating an infidelity. “We’re bombarded with cases,” he says. “We got plenty of work.”

Once a couple has separated, tracking can take on a new dimension — avoidance rather than pursuit. An app called Split can track the proximity of an ex or any “avoidee,” said Udi Dagan, the app’s founder and chief executive. Inspired by his own as well as his friends’ awkward encounters with exes, employers and other undesirables, Dagan decided to aggregate social networking clues from publicly available information, such as Instagram photo tags or check-ins on Swarm or Facebook. The app can also warn if an “avoidee” is RSVP’d to the same event as a user.

“We turned the idea of connectivity on its nose,” Dagan said. “It’s about disconnecting instead of connecting. It’s anti-social networking.”

Thus technology, which can hasten a divorce, also can make an acrimonious split a little more comfortable. Faithful or not, we’re always married to data.

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