This error is understandable because the law governing the timing for the granting of a divorce on the fault grounds of adultery, habitual alcohol/drug abuse or physical abuse is somewhat confusing.  SC Code §20-3-80 states “No reference shall be had before two months after the filing of the complaint in the office of the Clerk of Court, nor shall a final decree be granted before three months after such filing.” 

In layman’s terms, a party who files on one of these fault grounds can schedule a final divorce hearing two months after the action was filed. The Court can hear arguments that day, but the judge cannot sign the Decree of Divorce and the Clerk of Court cannot file and certify the Decree until three months have passed since the actual filing date.  Therefore, in the Sanford’s case, their divorce cannot become final until after March 11, 2010.

(This is the final posting in a series about safety in this digital age. Click here to read the previous article in the series.)

Spyware is software that monitors a computer user’s browsing habits.  Some Spyware is also capable of collecting personal information, and recording keystrokes. Some spyware contains other features such as taking snapshots of the computer screen; restarting, shutting down, and logging off the computer; controlling the desktop and mouse; and even making the computer talk.  Spyware works by sending the information it gathers to the installer’s computer via email in the form of detailed “activity sheets.”  The software is often inexpensive and easy to install but very difficult to detect without the use of special anti-spyware detection software.

Some spyware is also “acquired” when one downloads innocent looking software, music, or online videos, or by opening an email, IM, or text message.  In a 2004 study conducted by America Online and the National Cyber Security Alliance, seventy-seven percent (77%) of those surveyed did not think they had spyware on their computers, but eighty percent (80%) of the computers tested were infected with some sort of spyware program.

Spyware is used legitimately by parents on their children’s computers or by employers on their employees’ work computers when the employee knows he/she is being monitored.   However, when this information is obtained without the user’s knowledge, 18 U.S.C. § 2701, the “Unlawful Access to Stored Communications” Act is violated.  The Act states one may not “intentionally access without authorization a facility through which an electronic communication service is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system . . . .”

There are simple ways to protect yourself or your client from spyware. Advise clients to only install software from web pages they trust and tell clients to carefully read the fine print in licensing agreements, looking for any reference to agreeing to a company’s collection of a person’s computer’s information. Also, advise clients to be especially wary of popular free music and video file-sharing programs.  Web links found in email spam or other unsolicited messages frequently contain spyware.  Installing quality anti-spyware programs that find and delete spyware as well as running the anti-spyware programs once a week will better protect one’s computer.

KeyKatcher: Spyware Software

KeyKatcher is a spyware program that some divorce litigants have used to illegally monitor and spy on their spouses.   KeyKatcher software is easier to use when the couple lives together and the “spy” has constant physical access to the computer.  A KeyKatcher is a small device resembling a flash-drive that is connected to a computer’s keyboard or tower and records up to 262,000 keystrokes, or over 160 pages.   After the keystrokes are recorded, the “spy” can remove the device and download the information onto another computer.  To prevent the use of KeyKatcher on a computer, clients should check the keyboard port on the back of their computer tower.  If they find a foreign device, they should physically remove the device and have a qualified forensic computer expert analyze it.

Conclusion of the Series of Safety and Security in a Digital Age

Judges, lawyers, clients and the “average Joe” need to educate themselves about the various types of technology that can infringe upon their privacy and potentially cause them harm.  The reason for concern is that our laws are currently unable to keep up with the development of new digital gadgets and software. Thus, it is imperative for all to understand the potential abuses and to warn clients, friends and family from using any illegal means to obtain evidence about another individual without that individual’s knowledge and to apprise others how to protect themselves from becoming a victim of such abuse.

[1] Sharon D. Nelson and John W. Simek, “Spy v. Spy,” 28-WTR Fam. Advoc. 20, 21 Winter 2006.

[1] Spyware and the Law, http://www.spamlaws.com/spyware-laws.html (last visited Aug.4, 2009).

[1] Sharon D. Nelson and John W. Simek, “Muddy Waters: Spyware’s Legal and Ethical Implications,” ABA, http://www.abanet.org/genpractice/magazine/2006/jan-feb/spywarelegalethicalimplications.html (Accessed August 4, 2009).

[1] ThinkGeek KeyKatcher Page, http://www.thinkgeek.com/gadgets/security/5a05/ (last visited July 15, 2009).

(This is the fourth posting in a series about safety in this digital age. Click here to read the previous article in the series.)

Cell phone surveillance does have many valid purposes.  Employers often need to track their employees during work hours, and it is legal to use such systems as long as the employees know it is on the vehicle.  Some parents use this technology to monitor their young children, particularly those who may stray or are not old enough to care for themselves.  In addition, such technology is commonly used by parents on the vehicles driven by their teenagers.  For a small fee, one can easily contact their cell phone service provider and transform their cellular phone into a surveillance and GPS tracking device.  Although the federal wiretap law prohibits many forms of electronic communication monitoring, 18 U.S.C. § 2510(12)(C) specifically excludes signals by mobile tracking devices like GPS.

Predictably, GPS technology is sometimes abused by individuals wanting to stalk their spouse or significant other.  Obviously, such misuse is illegal, but many abusers are undeterred.  New technology also exists to illegally register a phone via the internet for GPS surveillance, with the thief paying for this surveillance on his own credit card. Thus, advise clients not to loan their cell phone to anyone whom they do not trust even for a few minutes because one may never know if he is being tracked via his cell phone since the charges for this service do not show up on the cell phone owner’s statements. Clients should also know that soon-to-be-ex-spouses sometimes put GPS software on the children’s cell phones for improper purposes, such as following their spouse when the child is with the other parent.

GPS devices are also easily placed in PDAs, pocket PCs, running watches, and vehicle navigation systems (OnStar).  GPS devices are frequently hidden in automobiles. The most popular locations are inside the plastic bumper, in the gap between the windshield and the hood, inside stereo speakers, in the front dash, under rear dash fabric, or in the rear dash/third brake light. It is easy to hide these devices, and many are also capable of tracking the cars in real time as well as having the ability to record the car’s speed. The features are particularly useful to confirm a spouse is cheating or more importantly, if a spouse is driving dangerously at high speeds with the child(ren) in the car.

Sherri Peak, of Seattle, Washington, was stalked by her ex-husband through a cell phone equipped with a GPS that he had attached to the battery of her car.   Sherri filed for divorce when her husband become overly possessive and questioned her whereabouts throughout the day.  After they separated, her husband began showing up everywhere she went.  After six months of this behavior, Sherri asked police detectives to search her car to find out how her husband knew her every move. The detectives found a tracking device made from an ordinary cell phone under her dashboard. The charger was wired into her car’s electrical system so that every time Sherri started her car, the phone would charge.  He also set the ringer to silent so the phone automatically answered whenever he called, but without her knowledge. Thus, he could listen to everything going on in her car.  The cell phone was also equipped with a GPS system with a companion computer program so Sherri’s ex-husband tracked her every move. (See the link in Footnote 15 for a video account of Sherri’s ordeal.)

Sherri’s ex-husband was ultimately arrested.  He plead guilty to felony stalking and served eight months in jail. When the police arrested him, they also found keys to Sherri’s house, night vision goggles, computer spyware, print-outs of emails Sherri sent to other people, and bank account numbers and passwords. This story is not highly unusual; according to one source, three out of every four stalking victims are terrorized by threats of violence or death at the same time they are being monitored and followed.

To avoid having an estranged spouse, stalker or ex-spouse from using GPS technology to track a client, advise the client to contact their cell phone service provider and ask if location services have been added to his or her service plan. In addition, advise clients to set up their own cellular phone account and make it password protected so no one else can access account records or change account settings. Clients should also beware cell phone “gifts.”  The reason for this warning is that the cell phone may have GPS and other monitoring technology downloaded on it, and the recipient may not want the giver to have the ability to track down his or her whereabouts.  Finally, tell clients to set Bluetooth to “hidden” and GPS to “911 only,” especially when in public areas. As to GPS devises attached to vehicles, find a knowledgeable detective or car repairman familiar with the hiding places to locate any hidden devices.

Check back soon for the next article in the series:  Spyware and Your Safety

[1] Michael Russell, Cell Phone GPS Surveillance, http://ezinearticles.com/?Cell-Phone-GPS-Surveillance&id =510569 (last visited Nov. 9, 2009).

[1] Dateline MSNBC, “From Husband to Stalker,” http://www.msnbc.msn.com/id/21134540/vp/19292264 (last visited Nov. 9, 2009).

[1] Marie Tessier, Hi-Tech Stalking Devices Extend Abusers’ Reach, http://www.womensenews.org/article.cfm/dyn/aid/2905/ (last visited Aug. 7, 2009).

(This is the third posting in a series about safety in this digital age. Click here to read the previous article in the series.)

Mental and emotional abuse from a controlling spouse is exacerbated by the use of spyware. Currently, few laws address one spouse’s intrusion upon another spouse’s right to privacy through abusive spy methods.  Clearly, spyware that tracks a partner’s moves by observing and monitoring all computer activity such as websites visited, emails sent and received, instant messages sent and received, as well as all passwords and PINs entered by the spouse without their knowledge is illegal in most states.

The use of such illegally obtained information as evidence in court proceedings is also prohibited by law.  The Federal Wiretap Act prohibits use of communications obtained through wiretapping in violation of the Act admitted into evidence at trials or hearings. A law firm in Chattanooga, Tennessee, was recently sued sued for two million dollars ($2,000,000) for allegedly using illegally obtained email evidence in a divorce action.   Allegedly the estranged wife used email spyware to intercept communications from her husband’s computer, and her attorney “used or tried to use” the communication in the divorce action.

Attorneys, for both ethical and legal reasons, must clearly advise clients not to use any illegal spyware devices even if they suspect their spouse is cheating. Further, the Model Rules of Professional Conduct address the serious ethical violations that could arise if an attorney encourages or condones a client’s use of such spyware.   Therefore, it is imperative for clients to understand the differences between legal and illegal surveillance so both the attorney and their clients avoid costly mistakes.

However, the use of spyware in intimate relationships to control a partner is not a form of domestic abuse currently recognized by law. Few criminal statutes effectively address the issue of marital spying. Some civil causes of action exist that might encompass spyware, but these laws are not well developed or targeted to put an end to this form of abuse. Even the Federal Wiretap Act, 18 U.S.C. § 2510, falls short of completely protecting a spouse who is unknowingly tracked, monitored and controlled by the other spouse. In fact, hardly any legal remedy exists until the controlling spouse becomes physically abusive.

The criminal definitions of domestic assault, stalking, invasion of privacy, computer tampering, and violating state wiretap acts each fall short of including marital spying as a criminal offense. The likely reason is that these statutes and acts were passed well before the rise in use of computers and the Internet. Possible causes of action against a spouse who uses spyware against another spouse are negligent infliction of emotional distress, intentional infliction of emotional distress, invasion of privacy, trespass to property, and possibly violation of a state’s wiretap act.  Again, proving each of the elements required for each cause of action is difficult.  Therefore, it is imperative that state legislatures and the federal government update civil and criminal laws to include spyware and other digital and technological advances to prevent harassment by one person against another.

Check back for the next article in the series:  Cell Phone Surveillance and GPS: How to Protect Your Privacy and Safety

[1] See chart for individual state laws. “Electronic Surveillance Laws,” National Conference of State Legislature, available at http://www.ncsl.org/IssuesResearch/TelecommunicationsInformationTechnology/Electronic

SurveillanceLaws/tabid/13492/Default.aspx.

[1] Id. at 673 and 18 U.S.C. § 2515.

[1] “Attorneys Sued on Alleged Use of Email Obtained from Spyware,” Chattanoogan News, available at http://www.chattanoogan.com/articles/article_153998.asp (last visited June 29, 2009).

[1] Model Rules of Prof’l Conduct R. 1.2(d) (2002). Scope of Representation and Allocation of Authority between Client and Lawyer: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent…”

Model Rules of Prof’l Conduct R. 1.6(b)(2) (2002). Client-Lawyer Relationship: Confidentiality of Information: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another …”

Model Rules of Prof’l Conduct R. 8.4 (2002). Maintaining the Integrity of the Profession: Misconduct: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation…”

[1] Katherine F. Clevenger, “Spousal Abuse Through Spyware: The Inadequacy of Legal Protection in the Modern Age,” 21 J. Am. Acad. Mat. Law. 672, 653-76 (2008).

[1] Id.

[1] Id. at 656-62.

TrapCall is another prepaid phone card from the makers of SpoofCard.  TrapCall cards are designed to unblock and reveal callers’ identities and numbers even if an individual blocked his or her number using *67 or paid the phone company for an unlisted number.

Some TrapCall features allow the user’s phone to show the caller’s full name, phone number, and billing address. TrapCall also has features that can send a transcription of a caller’s voicemail as an SMS message (short message service, or text message) to the abuser’s phone so the abuser captures the caller’s blocked information without the caller’s knowledge.   This technology can record all incoming calls and retrieve online conversations as well as block an unwanted call with a “disconnected” message.

Similar Caller ID technology was utilized in the 1995 murder of twenty-one year old Kerisha Harps.   Ms. Harps phoned a friend’s house not knowing that her ex-boyfriend was at the friend’s home looking for her.  When the ex-boyfriend saw the phone number and the location Ms. Harps was calling from, the ex-boyfriend used the information to locate and murder Ms. Harps.

Despite stories like this, TrapCall’s manufacturer insists that the technology was created to help protect domestic abuse victims identify harassers trying to call them as well as provide them with the ability to record the abuser’s message and conversation.  The company further defends its product by pointing out that abuse victims can counteract TrapCall’s features if they purchase a SpoofCard.  SpoofCards are made by the same manufacturer as TrapCall cards, and SpoofCards can display a false number if the abuse victim wants to hide their real number if he or she has to call the abuser so the abuser cannot identify his or her location or real phone number.  In situations involving child custody and constant contact between estranged parents, if this technology is used by an abusive parent, cell phone communication becomes unreliable and potentially unsafe for the other parent and children.

The development of new technology is moving so rapidly that only those in the technology world can keep up with all the new gadgets and software.  While it is hard for the average person, as well as attorneys, experts and judges to keep abreast of new developments, all need to recognize that technology exists that gathers intelligence about others while the “gatherer” sits at his desk.  Thus, before one assumes a client is overly paranoid claiming others are spying on her, recognize that her paranoia may be real, and recommend hiring a technology expert to uncover whether the client’s privacy was illegally invaded or information illegally gathered about the client.

Watch for the next article in the series: Cell Phone Surveillance and GPS: How to Protect Your Privacy and Safety

[1] TrapCall Features, http://www.trapcall.com/features (last visited Dec. 9, 2009).

[1] TrapCall Frequently Asked Questions, http://www.trapcall.com/learnmore (last visited Nov. 9, 2009).

[1] TrapCall was not created until 2009. Caller ID was used in this instance.

[1] Emily Friedman, TrapCall Unblocks Caller ID, Exposes Number, http://abcnews.go.com/Technology/AheadoftheCurve/Story?id=6899472&page=1 (last visited Nov. 12, 2009);

The application promotes caller ID spoofing, voice-changing, and call recordings.  A SpoofCard also allows users to change the gender of their voice to further hide their identity from the other party.  While it is legal to use this technology, some states have passed laws making spoof caller ID illegal when it is used “to mislead, defraud or deceive the recipient of a telephone call.”  However, in July 2009, a Florida District Court held that the state’s recently enacted Caller ID Anti-Spoofing Act was unconstitutional because the law had the effect of regulating commerce outside of the state and was therefore in violation of the Commerce Clause of the United States Constitution. On the federal level, the House of Representatives has reintroduced a bill to amend the Federal Communications Act of 1934 to prohibit the manipulation of caller identification information.   A House committee is currently reviewing this bill.

Sometimes, SpoofCards are used fraudulently.  For example, someone can take advantage of credit card companies’ use caller ID to authenticate newly-issued credit cards.  In situations where credit card holders are asked to call a 1-800 number from their home phone or cell phone to validate their new credit card, spoof card technology can actually spoof “validation method,” thereby allowing a stranger to acknowledge receipt of someone else’s credit card.  If such abuse occurs, the abuser “Credit card thief” can then fraudulently use the other person’s credit card without that person knowing their money was stolen until their bill arrives in the mail.

In 2005, SWAT teams surrounded a building in New Jersey after police received a call from a woman claiming she was being held hostage in an apartment.  Her caller ID had been spoofed, so the 911 call appeared to come from her apartment.  Actually, the woman living there was not in any danger. Instead, a teenager had pretended to be the woman, and he called 911 using SpoofCard technology so that the 911 operator thought the call came from the woman’s apartment.  The teenager was later found and charged with conspiracy, initiating a false public alarm, and making a fictitious report to police.  He admitted to committing the hoax to take revenge on the people who lived in the apartment.

Another example of potential abuse of spoofing technology includes the ability to break into someone else’s cell phone voice mailbox. Many cell phone systems are automatically set up to accept calls from the account owner’s cell phone number to activate a replaying of all voicemail messages left on the phone. SpoofCards can create the appearance of being the active cell phone such that the spoofer can listen to someone else’s voicemail messages.  In divorce cases, one spouse might use this software to listen to the other spouse’s voicemail messages so attorneys should educate their clients about this potential danger and advise clients to use password protect their cell phone voice mail.

Particularly relevant to divorce litigants is a situation New Jersey attorney Deborah Alexander encountered.  Her client was a victim of domestic violence and had a restraining order against her ex-husband.  The ex-husband wanted to overturn the restraining order against him by attempting to show the victim was calling him incessantly, thereby, proving to the court that the victim did not fear him.  The ex-husband attempted to prove that many “missed calls” on his phone supposedly originated from his ex-wife’s phone on his caller ID.  However, the ex-husband was using spoofing technology to make it appear the ex-wife was trying to contact him, when in fact, he was calling himself and inputting her number himself. To catch such abusers, computer forensic specialists and cell service providers can sometimes assist show that the victim did not place a phone call at a certain time or to a certain person by downloading the “real” cell phone’s records because it is easier to show that a text was not sent from a certain phone at a certain time than proving the illegitimacy of a call or text that was received.

Next Post:  The Abuse of Trap Call Cards by Stalkers & How to Protect Yourself

[1] SpoofCard Frequently Asked Questions, http://www.spoofcard.com/faq (last visited Nov. 9, 2009).

[1] Id.

[1] Federal Court Strikes Down Florida Anti-Caller ID Spoofing Law, http://www.newsguide.us/technology/

telecommunications/Federal-Court-Strikes-Down-Florida-Anti-Caller-ID-Spoofing-Law/(last visited Dec. 12, 2009).

[1] Truth in Caller ID Act, H.R. 1258, 111th Cong. (2009).

[1] Bruce Schneier, Schneier on Security, http://www.schneier.com/blog/archives/2006/03/caller_id_spoof.html (last visited Nov. 9, 2009).

[1] Id.

[1] Id.

Lessening the fear of those who find themselves in this position is a great service.  Giving a divorce client a clear idea of their options alleviates much of their fear.  Our firm has accomplished this task by creating a simple, one page visual that describes South Carolina’s Family Court divorce process.  To download a copy of this visual, please click here.

I used to hand draw this chart for clients, but given my terrible handwriting, clients responded very positively to this new visual!  They tell me this one document truly helps them grasp the incredible amount of information we give them orally into an understandable and easy to follow map.  Many also find it reassuring to know that at any time, even after the divorce, reconciliation is possible.

Thus, if you know of someone going through a South Carolina divorce refer them to this chart.   Giving our clients this chart is one of the greatest services my team and I provide our clients.  It decreases the emotional toll and stress the clients feel, especially at the beginning of a case, and as a result, the client is much better able to assist us in substantive issues when their emotions are less heightened and likely to interfere with wise decision-making.