Privacy and Family Law in New Jersey
April 16, 2019
BY: Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain
By Amanda Yu, Esq.
Last month, I participated in a webinar entitled “Privacy and Family Law.” As a fairly technologically savvy individual, I was very interested as to how the panel would address this incredibly broad topic.
Courts have consistently held that privacy rights in the United States are very important and must be upheld and respected. However, in family law matters, where two individuals are linked and have shared private aspects of their lives throughout their relationship, the line is a bit blurry. Furthermore, as parents, these individuals have the right to certain innately private information such as medical records of their children.
In New Jersey, the Court Rules require the redaction of “personal identifiers” when submitting records to the Court. This includes Social Security numbers, driver’s license numbers, vehicle plate numbers, insurance policy numbers, active financial account numbers, active credit card numbers, or information as to an individual’s military status. This is because much of the Court’s records are open for public inspection. Even if they are intended to be kept confidential (such as a Confidential Litigant Information Sheet or a Case Information Statement), the inadvertent dissemination of this information is certainly possible. Therefore, in order to protect every individual’s privacy, the Courts require that these identifiers be removed from any documents submitted to the Court.
So, it’s certainly a good thing that the Courts protect some of your personal information. But, what else do you need to know?
The New Jersey Wiretapping and Electronic Surveillance Control Act is identical to the Federal Wiretap Act also known as the Electronic Communications Privacy Act of 1986 (“ECPA”). In New Jersey, only one party needs to consent to being recorded or surveilled. Therefore, if you are a party to the conversation or event being recorded, it is not a violation of New Jersey’s statute if you do not tell the other individual(s) involved. So, if you and your spouse are in a heated argument, it is entirely legal for your spouse to record your conversation without your knowledge or consent. In the same vein, if you are speaking with your spouse and s/he starts admitting to wrongdoings or if you feel that your safety is being threatened, you are certainly entitled to record the interaction.
Shared Electronic Devices
If you and your soon-to-be ex are still living together and utilize the same computer, tablet, or other electronic devices, consider securely password protecting all of your files and accounts, and surfing the internet in “Incognito Mode.” Although you do have a reasonable expectation of privacy in your own home, if you freely leave information on a shared computer which your spouse is an authorized user, these files and documentation may be admissible in Court.
In White v. White, 344 N.J. Super. 211, 215 (Super. Ct. 2001), Wife retained a private investigator to obtain evidence that Husband was having an affair. The private investigator was able to obtain AOL email correspondence between Husband and his girlfriend and images viewed on the Netscape web browser. Because these documents were obtained through a direct copy of the computer’s hard drive that did not require a password or any other security measures, the Court admitted the evidence of Husband’s adultery. Additionally, since the computer was located in the sunroom of the parties’ home of which all members of the family, including their children, had free and open access, Husband had no reasonable expectation of privacy.
If you and your soon-to-be ex share a vehicle, be wary of any GPS device being utilized. Also, as anyone with a smartphone should know, your location information may be stored when using (or even when not using) certain applications such as navigation programs or geotagging photographs and videos. This information, as long as you are traveling to a public location or driving on public streets, is fair game in the Court’s eyes.
<However, the installation of a GPS device on another individual’s vehicle, even if it is your current spouse, is strictly forbidden under the criminal code. This can also be considered a predicate act of domestic violence if the Court finds that the data was used in an untoward way. For instance, collecting data but not acting upon that information may be considered stalking, but not harassment. However, utilizing the GPS data to then repeatedly following or showing up at your spouse’s location may be considered harassment.
As a general rule, everyone should be aware of their social media footprint. By using services such as the “Wayback Machine” through which one can access “snapshots” of archived internet sites, one may be able to locate posts that have since been deleted or made private. Additionally, even if your accounts are private, if a third party takes a screen capture of your post and provides it to your spouse, the post may be considered evidentiary in your matter.
In a recent unreported (unprecedented) decision, B.K. v. R.G., the Court concluded that R.G. committed acts of domestic violence against B.K. by sending malicious and threatening internet communications to B.K. and creating a fake dating profile in B.K.’s name which resulted in third parties soliciting B.K. for sex. Although B.K.’s complaint was filed in October of 2016 (prior to cyber-harassment being added as a predicate act for domestic violence in December of 2016), the Appellate Division still affirmed that R.G.’s actions constituted harassment under the Prevention of Domestic Violence Act. Just because the internet seems like an anonymous place, it certainly is not.