Protecting Your Phone during a Family Law Case

Hello, my name is Brian L. Jackson. I’m a Tulsa father’s rights attorney here with Dads.Law where fathers are not disposable and we’re here on location with the Arkansas River and PSO power plant in the background. I’m here with my daughter and my dog and they’re here just to remind us all why we’re here. We’re here because of family. So guys, in the last video I was talking about your kid’s phone in device in schools. I want to talk about something else and this is a comes up because I had a recent case involving this is keeping your device secure.

Recently had a situation where a client who was in the midst of a divorce, his phone came into possession of his ex-wife and unfortunately he hadn’t put a password on the device or any kind of biometrics or anything and she was able to access the device and it created a problem for him because she found something she believed to be evidence of some not so good behavior. I’ll just leave it at that and the result was that emergency pleadings got filed. So there’s two issues to discuss here. First of all, legally speaking, if someone does procure your device and access it without your permission, either whether it’s secured or not, is that evidence admissible in court? And the other issue is what can you do to better shore yourself up so that doesn’t happen to you?

Legal Considerations: Admissibility of Evidence

So from a legal standpoint, the rule is going to depend on whether or not you’re talking about a state actor acting pursuant to a criminal investigation or whether you’re talking about a private actor in civil court. If it’s a state actor, then that would be considered a search. Even if they came into possession of the device, let’s say you, oh I don’t know, you lost it and it was turned into the police, they can’t just root through your device. That would be considered a search and if they find any evidence of criminal behavior and they didn’t have a warrant, then in all likelihood that evidence is not admissible in court because it does require probable cause and usually the search of an electronic device under most contexts, unless it falls within an exception, is going to require a warrant. So if they don’t have one, the evidence is probably not admissible. Now that’s criminal court. If it’s a private party, like say your ex, they don’t need a warrant, you’re not subject to the Fourth Amendment and now you’re in civil court, which means the Fourth Amendment wouldn’t apply anyway. So the answer is now you’re looking, most likely you’re looking at the rules of evidence.

Now in Oklahoma to sponsor any kind of an exhibit into court, any document and ultimately like a message from your phone or a photograph or anything like that would be considered a document. The person has to be able to authenticate and the immediate problem with something obtained in such a manner is you’re going to necessarily have to admit to having intruded in the person’s phone, which is at a minimum a tort and potentially a crime, and you’re now admitting to what amounts to dishonest behavior to obtain the document. So I would submit that very likely by definition the document isn’t admissible because it cannot be authenticated by the person sponsoring it. Although there is one other issue. It’s your phone. So they could potentially show you the document and say, hey, do you recognize this and can you authenticate it? Is that exactly what it says it is? Did it come from your device? And that might potentially get it in that way. And of course the other issue is you have to, as part of authentication, is you have to be able to sponsor it as saying it’s a fair and accurate representation of what was taken off the device. And again, if you’re having to admit to a dishonest act to acquire it, then it makes your word suspect as far as whether that exhibit is actually what it purports to be. Nevertheless, you don’t want that to be you. I will say that.

Protecting Your Phone: Practical Solutions

The practical solution to the problem, most devices these days have cryptographic features. In other words, you can scramble the contents and set a password. And if you have a smartphone, you should have a password at a bare minimum. If you have trouble remembering the password, then set up biometrics, but definitely have a password on your phone because there is a tremendous amount of sensitive information there. It can and will be misused if it falls into the wrong hands. And let’s face it, even the most organized of us have misplaced our phone once or twice. And you definitely don’t want someone to lay hands on it. You shouldn’t.

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If you have questions about that, or you’re dealing with an issue of any kind related to your privacy or your kids, you need a good lawyer. And one place you can find a good lawyer is at Dads.Law, where fathers are not disposable.