Last month brought the revelation that someone had managed to hack the database of Avid Life Media’s primary source of revenue; the AshleyMadison.com website.  The report that some 34,000,000 names were now available for discovery has prompted a huge controversy and a lot of angst among its subscribers.  As the scandal progressed it claimed the job of CEO and founder Noel Biederman, who resigned on August 27.

But the big news today is not about “Avid Life”  but life itself.  Reports are circulating that because women never really were interested in having an affair, they formed only about 5% of the subscription base.  So, how does one run a dating business with 19 men searching in a pool for each woman?  Reports on sites like Salon and Gizmodo are suggesting that the easiest way to accommodate was to create something called a feminine robot or “fembot”  who used programmed titillating “chat” to allow male customers to think that they had the interest of a live woman who was giving consideration to having an affair.  Needless to say, this conversation did not have to go very deep to keep an electronically aroused male customer interested in keeping his subscription current.  The article posted on Gizmodo contains a letter from the California Attorney General asking Avid Life to respond to a customer fraud complaint.  The customer complaint is also revealed and he does seem to make a point when asserting that some of the women with whom he was corresponding were reportedly logged on all day Christmas.  Even the most licentious married woman typically takes off Christmas morning, if only to see her spouse and kids open their gifts, right?

So, it would appear that while the website may have promoted adultery, it not clear just how much product was delivered, so to speak.  Now the question becomes, is it enough to intend adultery?  Under Pennsylvania law, that’s a problem.  Back in the day when adultery was a crime, the requirement was a “carnal connection.” As we know, Ashley Madison did not keep track or even charge for carnal connections.  Fees were charged based upon electronic ones.  For a person to secure a divorce premised upon adultery the evidence needed to be “direct and clear”.  And while Pennsylvania adopted the English rule that adultery could be proved by circumstantial evidence, this produced what is called the “inclination and opportunity rule.”  This was a three step test that required proof of the inclination of the defendant; inclination of the co-respondent and circumstances which established that the two had the opportunity to fulfill their shared desires.  But, while that test seems quite loose the Courts were also emphatic that suspicion was not a substitute for proof.  Thus in a 1921 Allegheny County case, man and woman were found registered in the same room of a hotel but before they reached their assigned room, a hotel detective intercepted the woman and ordered her to leave.  Yes to inclination; yes to opportunity but the commission of the “act” was thwarted.  Had they been discovered leaving the room together the following morning, another result would have been certain.  See Naylor v. Naylor 59 Pa. Super. 547, 554 (1915).

But, for those who discover a male spouse as a registered customer of Ashley, the road will not be easy even though paved with bad intentions.  The “intent” is clearly there where the website shrieks that “Life is short.  Have an Affair.”  But the intent of the co-respondent is not so easy to gauge if the co-respondent is little more than an algorithm written to make suggestive comments and ask cutesy questions.  One can’t have carnal connection with an algorithm no matter how spirited the attempt.  Computer programs don’t have intent and certainly don’t offer much “opportunity” for physical connection.  So before loading up your subpoena to the Toronto based owner of Ashley, think twice.  The rumors are the girl just doesn’t deliver.

N.B.   We should also mention that rumors have circulated that Avid Life Media did not do much to verify who was on its website.  This creates an authentication problem under the recent Superior Court decision in Commonwealth v. Koch, 29 A. 3d 996 (2013).  Of course, credit card or other confidential information was provided to open an account, the authentication issue may well disappear.

 

Ashley Madison Data Breach only Slightly Less Obvious
Ashley Madison Data Breach only Slightly Less Obvious than Lip Stick on the Collar

 

When I first heard of the Ashley Madison data breach, I seem to be one of the few family law attorneys who felt somewhat cool to the idea it was going to result in a crescendo of divorce filings. First, due to Ashley Madison not having an email verification protocol, the presence of an email on the list is not in any way a confirmation that the legitimate owner of the email registered it with the website. Secondly, I had to assume that anyone with common sense was not using a “real” email and the chance for exposure would be minimal. Thirdly, I assumed that of the millions of identified users, perhaps a smaller percentage were active users and a portion were fake emails or users who registered as a goof; I imaged a much smaller pool relative to amount of registered users. Finally, I considered the other spouse and whether they would have the wherewithal or suspicion to search for their spouse’s email (emails?) among the users. Overall, I imagined a smattering of “Ashley Madison motivated divorces” being reported, but nothing that would move the needle on average filings.

If initial reports are accurate, I clearly overestimated the common sense of many Ashley Madison users and grossly underestimated their laziness in not opening anonymous, dedicated email accounts to register to the site.

Now that the data has been dumped and various websites are combing the data for notable users and email suffixes, I am much more certain that there will be some serious fall-out for relationships, certainly, but also for the employment of users. The news coverage surrounding the breach also brought to light what might end up being the most relevant aspect of the breach for any future divorce cases: the expense. Again, while the presence of an email is not dispositive of use, the credit card records are pretty conclusive.

Based on the price scaling reported, a motivated philanderer could rack up a fairly significant bill on Ashley Madison before they ever get to their first illicit rendezvous. When you factor in the costs of carrying on an affair (i.e. meals, travel, and gifts) the expenses increase exponentially. Each dollar applied to the affair is a dollar inappropriately dissipated from the marital estate.  Once the affair is exposed and a case is in litigation, a forensic accounting of bank accounts and credit cards will occur and eventually the financial scope of the affair will emerge.

The affair, in of itself, may not have a tremendous impact on a case since equitable distribution in Pennsylvania is blind to the bad actions of parties (unless those actions have a financial impact on the estate). For members of the armed forces, however, adultery is a punishable crime which could lead to dishonorable discharge and loss of financial benefits, such as pensions. Losing a pension adversely impacts not just the service member, but the service member’s spouse. Losing a retirement account due to such behavior would undoubtedly be argued as a dissipation of that marital asset and with the value of the lost pension being assigned to the service member and corresponding assets given to the spouse (assuming there are any).

Other people may be in sensitive positions involving confidential data or public positions where the appearance of impropriety from an exposed affair has a greater impact than whether the affair affects their ability to do their job. Losing a job over an affair could be interpreted as a “voluntary decrease” in income, not unlike being fired for cause or voluntarily taking a lower paying position to avoid a support obligation.

The real story about Ashley Madison data drop is not the salacious exposure of people seeking out affairs, but the breach of security for an organization relying so heavily on confidentiality – their entire business model and marketing campaign hinges on it. Go see our blog on data security for more information on such topics.

What will continue to generate news for the coming weeks, however, will be the cases where Ashley Madison data will be presented as evidence for economic loss in divorce or support cases, and the jumping off point for investigations into certain registered users. After the initial fireworks of the disclosures, this will be a slow burn story as more people are exposed and the repercussions are felt. The easy joke is that this is a boon for divorce lawyers, but I think it will be the family therapists and accountants who end up the busiest in the end.

(Photo Credit: Copyright a href=’httpwww.123rf.comprofile_toniton’toniton  123RF Stock Photoa)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty