By: Uri Berkowitz & Yonatan Hilleli
How does one prevent a spouse from discovering incriminating emails and SMS messages? Where to you go if you want to rummage in your unfaithful spouse’s computer? Whose side is the law on? A guide to the unfaithful and the betrayed in the digital age
An SMS message may turn out to be very expensive. Just ask the resident in the north who wanted to spend a few passionate hours in the middle of the day with his lover and sent her the following SMS: “I want to see you. Let’s meet at noon.” He also stated the exact meeting place. However, instead of sending it to his lover, he sent it to his wife.
The wife, who had been seeking evidence of her husband’s unfaithfulness, grabbed this golden opportunity and after a quick consultation with her lawyer, Michal Shaked, she summoned a private investigator and the two of them waited, equipped with a camera, for the unsuspecting couple at the appointed meeting place in a small community near Haifa. And indeed, they soon saw the lovers enter one of the houses and close the door behind them. When the husband arrived home that evening, the wife showed him the SMS message on her phone and accused him being unfaithful. She then whipped out the photos that the private investigator had taken outside the love nest.
The pornographic photo industry that formerly starred in divorce cases has, in the digital era, made way for less invasive methods to prove spousal disloyalty. Today all a spouse needs is to pick up email or SMS correspondence that gives information about upcoming meetings with a lover,” explains Avner Zinger, a legal expert in family law. “Let us assume that according to digital information a husband knows that a meeting is about to take place between his wife and her lover. He can follow them, see them arriving at a hotel, getting a room and entering it. He and the detective can wait outside for an hour, and this is tantamount to an act of betrayal.”
Cellular phones, emails and instant messaging programs have become an integral part of our daily lives, but at the same time have increasingly invaded our privacy. There is usually no cause for undue concern: even if Internet companies know more about you than you think, they use this information to flood you will adverts that are relevant to your areas of interest. The problem arises when the computer and the Internet, to which many couples owe the fact that they met, becomes a cruel and effective tool when the couple decides to go for a divorce.
“More and more lawyers dealing in family law encounter cases with digital evidence,” says Prof. Dan Primer, an international family law expert, lecturer in the Law Department at the Hebrew University and Chairman of the Israel Bar Associations’ Family Courts Committee. “I recently represented a woman who suspected her husband of having an affair and even of transferring money via the computer. When he left home one day, she summoned a computer expert who checked the hard disk and verified her suspicions. The expert prepared a report based on his findings and this was presented to the Court as evidence.”
Solution in the Market
If you have something to hide, you would not want your PC or cellular telephone to fall into the hands of Avner Sharon, CEO of established data recovery company Mitsy International, and an expert in the field. Mitsy uses Foresee software, developed in-house, that locates data in the hard disk even after it has been deleted from the recycle bin. According to Sharon, “The challenge is not only to implement the search, but to reach the computer in the shortest possible time, copy its contents without being detected, and disappear.”
Mitsy not only analyses computers, but also deals with the entire digital arsenal. “Our work covers any electronic product with a memory where stored information may benefit our customer,” Sharon explains. “If someone comes to me with a computer, I also ask to see the MP3 player, the handheld computer and the disk-on-key. These seemingly innocuous key rings often contain tiny operating systems, known as U3, that enable the owner to manage lengthy correspondences without leaving a single trace in the computer itself.
“New cellular devices and smart telephones are a world unto their own, and allow us to save photographs, clips and regular files. It is not so easy to cope with some of the newest devices, but the market inevitably finds solution to all obstacles.”
How to cover your tracks
Does the guilty spouse have any means to cover his tracks? According to Sharon, this is almost impossible, as any performed on the computer leaves traces. “Recently a woman called me after her husband discovered an email she received on her Gmail account. She didn’t want to change the password, but she wanted to make the account disappear as if it had never existed. The problem is that this kind of email account leaves traces in the computer—especially when we reply to mails that we receive. An expert will not necessarily be able to find each and every email, but he can locate sentences and dates here and there that can be used as pieces to complete the picture in an existing puzzle.”
There is software that conceals these traces, such as CCleaner, but they do not provide a foolproof solution. “Contrary to what most people think,” Sharon adds, “formatting the computer does not erase all the files therein. The only way to erase files in such a way as to make it impossible to reconstruct them is by using special software. On the other hand, finding that such an action has already been performed in the computer we are checking will raise the alarm, as it points to the fact that somebody is trying to hide something, and suspicion of that person will greatly increase.”
However, even if it were impossible to protect yourself completely, there are ways to camouflage digital traces. The best advice is obviously not to use digital communications for matters that are important to keep secret. Moreover, there are several simple steps that can be taken.
* Take into account that taking such steps in itself raises suspicion that you have something to hide. For example, if the incoming and sent message boxes in your cellular phone are always empty, this could easily raise the curiosity of an inquisitive spouse. On the other hand, with regard to the computer, you can always use the excuse that “adhering to the basic rules of information security is showing responsibility in the digital era.”
* In order to delete a file completely, deleting the file or even deleting it from the recycle bin is not sufficient. For total deletion one needs to perform an action called Wipe, which requires special software.
* Do not reveal your passwords to anyone, change them periodically and choose passwords that others cannot guess. Your birth day, for example, is an especially high-risk password.
* Instruct your Messenger or ICQ not to save your message history (logs), or delete them yourselves periodically.
* In your electronic email server, delete automatic saving of sent messages. Alternatively, empty your email outbox from time to time and immediately thereafter also delete the deleted mail folder. In general, if you erase any mail, make sure to erase it from the deleted email folder too.
* Do not allow automatic inclusion of content in incoming mails to the body of outgoing mails.
* From time to time delete the temp. file folder and allocate the smallest amount of memory possible for temporary folders. Delete cookies periodically. There are software programs that can help you do this without affecting essential cookies.
* Delete surfing histories and instruct your browser to keep your surfing history for 0 days.
* Cancel the option for the automatic insertion of user names, passwords and URLs. Don’t allow for automatic saving of passwords.
* Those willing to invest a bit more effort can search the Internet for guides that explain how to maintain “transparent” folders that other users cannot even trace.
* Cancel the option for remote connection to your computer.
* After each delete action, empty your recycle bin.
* How do you know if someone is checking up on you? After implementing all the above recommendations, regularly visit all the places you made changes to and pay attention to the following: Did any of the instructions revert to its former state? Go to the Programs list and check for suspicious looking programs, such as Wipe, etc. Fortunately, most programs don’t even attempt to hide behind innocent sounding names.
Laws favor the unfaithful
The best protection for those having affairs and anyone not interested in his family knowing what he is doing on the computer is the law itself and various rulings. In one of his last rulings, former President of the Supreme Court, Aharon Barak, significantly reinforced protection of the individual’s privacy rights.
In an appeal submitted by a woman concerning a Rabbinical Court decision to impose a divorce on her, she claimed that the verdict was based on illegal evidence that constituted a breach of her privacy rights. This was after the husband and two friends surprised and photographed the woman as she and her lover were engaged in intimate activities in the couple’s basement.
The husband claimed that the “breach of privacy” was for a “legitimate personal matter”, and that after the act was photographed in the cellar, it was no longer a private matter—and therefore breach of privacy no longer applied. Barak rejected the husband’s claim and ruled that “around each person is a space in which he is entitled to be with himself,” and that “This space moves with the person […] and can apply even in a place in which the individual has no ownership claim, such as his parents’ home, a hospital or a public telephone booth.”
Family law expert Adv. Nava Peres says that this ruling dealt a heavy blow to private investigators, as one of their main functions is to provide proof of spousal betrayal. Private investigators are complaining that there are now numerous actions, formerly considered routine, that they are no longer permitted to perform.
Unnecessary court cases
Barak’s rulings, however, do not only apply to private investigators equipped with cameras; they also apply to the violation of a person’s privacy on the computer. Adv. Haim Ravia, head of the Internet and IT section in the Pearl Cohen Zedek Latzer law firm and the person in charge of the computerization committee of the Israel Bar association, explains that evidence obtained in a way that violates privacy is not submissible in court. If a person invades his spouse’s PC to check for digital traces of unfaithfulness, the material found may be disallowed as evidence. Moreover, such an action may be considered an illegal penetration into computer material—and both these actions are in fact considered criminal acts.
A recent ruling in Israel determined that in certain circumstances an employer can read an employee’s email correspondence, but only with the consent of the employee in advance. Does the fact of marriage entitled spouses to invade each other’s privacy? In the said ruling Barak rejected the Rabbinical Court’s ruling that determined that a couple are not entitled to privacy between them. Barak stated his ruling with regard to the photographing of the wife by her husband, but it is also relevant with regard to invasion of computer privacy.
Not all cases, however, result in litigation. When one spouse presents irrefutable evidence to the other, the unfaithful spouse usually tends to end the conflict outside the courts. Adv. Peres tells of a case that occurred six months ago, when changes in the husband’s behavior raised his wife’s suspicions. As the cellular telephone account was in her name, she requested a detailed record of all SMS messages.
“She didn’t request the content of the messages, just how many, when and to which numbers they were sent,” Peres said. “She discovered that in one month 300 messages were sent to a specific number, some very late at night. This urged her to hire a private investigator who verified her suspicions. The woman did not have to turn to the courts, as the information she had was enough to convince the husband to come to an agreement with her.”
In an article on the subject that recently appeared in the New York Times, New York lawyer Jacqueline Barnett claimed that “Google may know everything there is to know about you, but they don’t really care one way or the other. On the other hand, nobody cares more about what you are up to than the person you were until recently married to.” The situation in Israel is not very different.