Vol. 31, No. 6, 2. Adultery in the Electronic Era: Spyware, Avatars and Cybersex.

• Author: Author: Sharon D. Nelson, Esq. and John W. Simek

Wyoming Bar Journal

2008.

Vol. 31, No. 6, 2.

Adultery in the Electronic Era: Spyware, Avatars and Cybersex

Wyoming Bar Journal Issue: December, 2008 Author: Sharon D. Nelson, Esq. and John W. Simek Adultery in the Electronic Era: Spyware, Avatars and Cybersex

"Adultery is the application of democracy to love."H.L. Mencken

Apparently, a lot of us have applied democracy to love, judging by the fact that more than half of us get divorced and some healthy proportion of the rest have committed adultery but stayed with the marriage. What would revered wit Mr. Mencken make of the ease with which so many of us commit cyberadultery? With our inhibitions lowered online, we seem to be a very depraved bunch indeed, profligate beyond the imagination of earlier generations. Online, everyone is as wonderful as your imagination can make them - no one rattles coffee spoons, snores, or has a tendency to flatulence. There are no body odors, no bad breath and no dandruff. And in spite of all the press about computer forensics and what it can recover, we apparently cannot control our behavior online. We still feel anonymous and free to engage in outrageous conduct.

Every time we believe we've heard it all, another astonishing set of case facts walks through our door. If you've been wondering what kind of electronic evidence one finds in family law cases, here's a sampling:

Husband, who is fighting with his wife over custody, spoofs his wife's e-mail address and begins sending terrible, threatening messages to himself. He introduces these messages in court as having been received by him from wife and wife loses custody. Wife returns to the court and asks for an order to have husband's computer forensically examined, as her conversation with her experts has convinced her that her e-mail address had been falsified. Husband, who is a smarmy son of a gun, brings in the computer. Upon examination, it is clear that he ceased using this particular computer just before the horrible e-mails started. He made one big misstep though - he'd forgotten that he had set up his "wife's ID" and tested it once with this particular computer before he began his barrage of vicious messages "sent from the wife." Complete screen shots of husband setting up the ID were recoverable. Custody was returned to the wife, and the husband faced perjury charges.

Husband, fighting for custody, receives a court order to examine his wife's computer for adultery. Deleted but recoverable images are found that wife has posted on multiple websites. She is naked and doing all sorts of XXX things to herself on the photos while advertising for a "playmate." In court, she portrays herself as the perfect "soccer mom" and is dressed for that role. The judge, who has been sympathetic for the wife formerly, examines the evidence from the bench on a laptop. His jaw drops as he views an image, looks over his glasses at wife, views another image, looks over his glasses at wife again, etc., etc. Custody is awarded to the husband forthwith and a considerable judicial tongue lashing is given to the wife.

Husband, who is quite secretive with his laptop, falls asleep at his desk. Wife walks in, finds that the laptop is logged into Second Life (an Internet virtual world) and sees on the screen an avatar (a computer user's pictorial representation of himself/herself) which has the same name of the woman she suspects her husband is dallying with. So she assumes the identity of her husband's avatar and begins conversing with the other woman. Through the course of the conversation, she learns that her husband's avatar has married the woman's avatar online in a full scale religious service, and that husband's avatar purchased a diamond ring and wedding band for the occasion. The conversation certainly confirms cyberadultery, if not the real thing.

With respect to the last case, cyberadultery is not evidence of legal adultery, though often the cyberadultery references real-life adultery. This was the first case in which we had seen cyberadultery in a virtual world, though undoubtedly it is common. Though the studies vary, most of them estimate that about 35% of online romances become real world liaisons.

A very common source of adultery proof is instant messaging.

Here's the usual story, which applies to both instant messages and text messages. Unfaithful husband and mistress agree that they will instant message each other but will delete the messages. Husband, who is generally older with more power and money, is quite careful to delete the messages in order to avoid discovery. The mistress however, will retain some, for several possible reasons.

A common gambit is that the husband tires of the mistress, breaks it off, only to find that she has retained evidence of the dalliance. She may threaten to tell his wife, she may extort money, she may demand that he do her favors. With much at stake, the husband may find it hard to resist any demands. At this point, you have what is wryly known in our office as a "dope on a rope."

Cell phones have come into their own recently. Early 2008 included journalists swarming happily over the steamy text messages sent by Detroit Mayor Kwame Kilpatrick, some 14,000 of them, to his Chief of Staff. Not only were some explicit, but they contained information about the times and locations of their trysts and their plans to cover them up. This after both parties had testified under oath that they had no intimate relationship. A major electronic "whoops."

Within the past year, we have seen perhaps a 200% increase in the number of cell phones given to us for forensic imaging and analysis. Forensics can indeed recover deleted text messages, sometimes going back for years. Why is the use of the cell phones for clandestine affairs increasing? Our theory is that most people are rarely far from their cell phones. It seems more private to them, and less likely to be discovered than misdeeds on the computer. Moreover, being a delusional crowd, most adulterers seem to have convinced themselves that deleted text messages are really gone. While it is true that the phone carriers themselves usually "delete the deleted messages" quickly, the deleted messages are written to the phone itself and can remain there for quite a long time.

As we admonish divorce attorneys constantly, you need to be thinking about all possible sources of evidence - digital cameras, iPods, PDAs, thumb drives, CDs, DVD, external hard drives used for backup, old hard drives, voicemail and on and on. The first thing we do when a client comes in the door is play a kind of high tech version of "Where's Waldo?" - and the picture is often equally confusing and complicated.

Now, of course, the good old computer is still often the source of the evidence. A word of caution here: if the computer is a marital asset, either party could back it up - likewise, either party can have it forensically imaged. But, and this is a huge but, they do not have the right to use forensic software, which will blow by passwords, to uncover things that were meant to be kept...