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iPad Texts?
iPad Texts?

We have written about electronic discovery and Pennsylvania’s wiretapping law on this blog before. For family law attorneys, they are issues which can be critical to your case, but also present a minefield of ethical and evidentiary issues. How information may be collected and in what manner can be unclear; similarly, it can be ambiguous to counsel and the courts how to weigh evidence collected electronically and presented to the court in a manner which makes it difficult to authenticate (i.e. text messages).

The criminal courts are, as always, the great laboratory of evidentiary law and last June the Superior Court issued a ruling in a case involving text messages from an iPad. Specifically, whether the Pennsylvania Wiretapping and Electronic Surveillance Control Act was violated by police when had an informant relay text messages to them from the defendant in a drug deal.  The trial court in Commonwealth v. Diego suppressed the text message evidence.

The Wiretapping Act was originally passed in 1978 and has been periodically updated to address evolving technology, though probably not quickly enough. This case presents iPad communication as a case of first impression.  The Superior Court cited a 2001 case (Commonwealth v. Proetto) which found that there was no reasonable expectation of privacy in sending emails or chat-room messages to third parties. Basically, using email and text services renders moot any expectation of privacy. Not unlike arguments used with social media; once released, an email or text may be forwarded, modified, and read by anyone the recipient chooses to disclose it to. Knowledge that the message was being recorded by text or email was sufficient notice to keep it from within a protected category of communication.

An iPad is not a telephone under the common understanding of the relevant term, the Superior Court reasoned, and no one would misidentify an iPad for a telephone.  The Superior Court’s decision, however, did not ultimately hinge on the type of device more so the method of intercept. The informant cooperated with police and relayed to them the contents of the text messages he received from Diego. Rather than observing them before the informant received them – which the Court identified as being a separate and distinct legal issue – the informant was voluntarily disclosing them to the police after he received them.  Accordingly, the evidence collected which lead to Diego’s arrest was legally obtained.

The take-away, as always, is that anything placed in a digital format poses a threat of being repurposed, passed along, or disclosed to unintended third parties. Maintaining solid “e-security” is difficult, if not overwhelming, but as this case indicates, you cannot be certain that texts and emails are not going to be discoverable or accessible to third parties; you can never be sure the recipient’s eyes are the only ones on them.

(Photo Credit: 123rf.com; Dirk Ercken).

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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.

We learned this week that former Secretary of State Hillary Clinton may have used personal email accounts to transact State Department business.  Chances are you may have read the article and quickly turned back to your office computer to confirm your Saturday night dinner plans or to email your attorney about filing a joint tax return for 2014.

Perhaps your electronic musings don’t have the importance of communications from the Secretary of State, but you should know that the law is clear.  You are entitled to no expectation of privacy if you use an office computer to carry your personal mail.  Zero.  Now some offices do not retain emails that have been sent/received using private accounts such as msn, Comcast or AOL.  But that appears to be a function of how the server works rather than office policy.

Chances are, your employer really doesn’t care if you plan your next vacation on the office computer.  But, there are folks out there who do want to know these things.  People like a former or estranged spouse.  If he or she should decide to subpoena your email account either at the office or otherwise, there is a reasonable chance that the information will be published.  Under Pennsylvania law, if the material is sought pre-trial you will get notice of the request and a chance to object.  But if the information is subpoenaed for trial, you may be learning about this stuff in the courtroom.

Another thing.  Clients commonly email us from office servers (i.e. brendak@bigcompany.com) with information they probably intend to be confidential.  If you are using your office email address, it probably has no protection from discovery in your family law case. On the other hand if sent or received on a personal account, you have a strong basis to contend that this was as private as a telephone conversation and therefore protected from discovery.

So be aware of what account you are using when you email. Don’t permit Ms. Clinton’s problem to become yours.

My colleagues Michael Kline and Elizabeth Litten recently co-wrote a series of blog posts for the firm’s HIPAA, HITECH and HIT blog containing valuable information for individuals either undergoing divorce proceedings or navigating other domestic relations issues.

In their series, Michael and Elizabeth explore complex issues arising from the November 2014 ruling by the Connecticut Supreme Court in Byrne v. Avery Center for Obstetrics and Gynecology, P.C. The case has significant implications for individual health information (“IHI”) privacy in the context of domestic relations – both in the divorce or legal separation context and even in a less confrontational domestic environment.  While settlement agreements and divorce decrees often address healthcare and health insurance issues, especially where there are custodial children involved, addressing IHI issues is much less common. Michael and Elizabeth also discuss practical tips for individuals dealing with situations involving their domestic relationships.

I invite you to read all three parts of their series. Here are Part I, Part II and Part III.