As a former prosecutor and defense counsel, I was often asked how I could handle dealing with criminals.  I explained that the difference between criminal law and family law was that in criminal law, you were dealing with bad people at their best. In family law, you are dealing with good people at their worst. A recent New York State divorce case illustrates this point.

Crocker and Anne were not what you would call a model couple – and not exactly a model divorce. On the face of it, they seemed like a model couple. Crocker is a 53-year-old investor relations consultant with a BA from Yale and a former Fulbright Scholar (the case didn’t use his last name, but c’mon guys – Google?). Anne has a BA from Connecticut College and a MA in Education from Columbia University and the daughter of the former CEO of Phillip Morris. Needless to say, with allegations that the husband, after getting his girlfriend (and local college professor) pregnant, visited a NYC brothel, the case got ugly – with lots of lawyers and lawyer fees.

It was at that time that Anne suspected that Crocker was bugging her phones and computers – not an uncommon allegation in divorce cases, but one usually reserved to the tinfoil hat crowd. I mean, really?  Well, in this case, it was true. It appears that Crocker installed spyware (MSpy) on Anne’s iPhone, and another program (OwnSpy) computers and other devices and was intercepting her communications with her lawyers and others and tracking her location through GPS. He also concealed his location and identify using a tool called IPVANISH, both software packages Crocker bought with his own credit card because, well, of course he did. When Anne and her lawyer went to Court to get an order from the New York County Sheriff (that does sound like a much more awesome job than it actually is) to prevent Crocker from destroying evidence of the hack, he of course destroyed evidence since he knew she was seeking the order because he was spying on her communications. Oh, and because the Sheriff accidentally called him in advance. Oops. When the Court asked him flat out if he was spying on his ex, he took the Fifth Amendment.

The Court appointed forensic examiners to look at Crocker’s computers (he “forgot” the passwords to several of his devices), and found evidence of his use of spyware and remote access programs not only to spy on his ex-wife, her privileged communications, and her whereabouts, but also to conceal his activities and to remotely wipe data from his own computers and cell phones about the remote access, theft of information and use of spyware.

The Court was not amused.

Remember, the court was just there to decide issues of custody and visitation, not whether or not Crocker committed a crime. And custody and visitation issues are usually determined by reference to the “best interests of the child.”  Bad conduct with respect to the Court, or even the ex-wife (whether criminal or not) might reflect badly on the parent, but it doesn’t mean that a hacker or spyware user is a bad dad, or that he shouldn’t have custody or visitation. Ordinarily.

In this case, the Court was trying to put the genie back in the bottle. It couldn’t restore the deleted files. It couldn’t retroactively restore the confidences and privileged communications of Anne and her lawyers. It couldn’t undo the bad acts. So the Court granted Anne’s motions with respect to custody and visitation (including attorney’s fees and other costs).

The Larger Picture

This isn’t really just about Crocker and Anne. It’s about how spyware, malware, hacker tools and techniques are now tools of litigation. It’s about how people use these tools to get advantage. How they use these tools to spy on others. How every day people in every day controversy’s resort to hacking of various kinds. How the threats are real and growing. And why companies and individuals both need to do more – much more – to protect themselves, because most of these hacks will not be detected, and most people don’t have the resources to conduct the kinds of forensics necessary to prove such spying.

No prenup will prevent this. The best advice I can give is to be careful out there.  But you knew that already.