Stopping Your Ex From Using Your Texts and Emails From Your Cell Phone With A Restraining Order - California Appellate Court Weighs In
/Love, Trust, and Password Sharing: A Cautionary Tale
I will start my rant today with a personal observation. Many married couples share all their cell phone passwords, email access, and other online communications with their significant other. Why not, after all, with marriage comes love, trust, and a "nothing-to-hide" mentality. Said with a smirk on my face, "what could possibly be the downside to this"?
If legal separation and divorce follows the marriage, one side may act quickly to download and/or copy every email, text message, or tweet from a phone account without permission. Their purpose? Could be several. Perhaps legal and factual advantage against the other spouse when either a family law hearing or trial commences. Or maybe, simple, cold revenge. What can the social media victim spouse do if the ex-spouse decides publicize embarrassing and hurtful social media/ email postings? There is no privacy rights protection (that spouse did have permissive access to your social media), and even invoking the attorney-client privilege is rather useless if the other spouse had, or still has access to your social media tools.
The Higher Court Steps In
This year the Appellate Court did find an avenue towards stopping a spouse who went "overboard" with his using his wife's text messages and emails from her cell phone. Although the husband allegedly was given passwords from his wife, and had the trust of his wife to access those accounts, there is recent case law that may be used to stop the spouse from using unauthorized access to media in a court of law.
Did the Court find the wife had a right of privacy, and agree with the trial court shutting down husband's use of the texts/emails? Not at all.
Did the Court find the wife had attorney-client privilege, and that many of her communications which were emails to her counsel, could not be used in violation of the privilege? Hardly.
The wife, trial court, and the First Appellate District reached a rather elegant solution: use The Domestic Violence Prevention Act (DVPA). The wife filed for a restraining order, claiming the husband's continued access of her phone's emails, text messages, and social media, even though they were allegedly accessible when the husband gathered the media, was an act of both harassment and emotional abuse. The husband's legal use of wife's communications (by printing her emails/messages for his declarations and trial court evidence) ended, because he would be violating a restraining order against him without seeking written permission of the Court to use the information first.
Looking At Evilsizor v. Sweeney
The case of In Re Marriage of Evilsizor v. Sweeney (2015) DJDAR 7137, published on June 26, 2015, addresses a VERY intrusive spouse, and what the other spouse did to shut him down. Ms. Evilsizor (the wife in this matter) argued Mr. Sweeney was in violation of the Domestic Violence Prevention Act (DVPA), and was granted a protective order of five years against her husband for his actions. Note: Mr. Sweeney did not commit acts of physical violence, did not threaten to commit acts of violence against her, nor physically stalk her.
Mr. Sweeney, simply put, had and used his access to his (ex) wife's phone, including passwords, login information, and all her text messages, which this Court found as both harassing and emotionally abusive towards his wife. The restraining order granted, and Mr. Sweeney could no longer have access or use past social media data from his wife's phone.
Ms. Evilsizor claimed suffering from "sleepless nights", being "sick to [her] stomach", having her "friends mad at [her]" for disclosures that hurt them, and suffering "shock and embarrassment." The DVPA, specifically California Family Code Section 6320, includes "harassment" as one possible activity of a restrained party. Combined with the alleged victim's lack of sleep, stomach problems, shock and embarrassment, the victim/wife was able to get a restraining order granted, and put an end to husband's use of her social media and email data on her phone.
How Can This Case Affect My Family Law Matter?
How does this case help a party? Simply put, if you allow your spouse access to your phone and passwords, and that spouse wants to use it in Court, you have a new avenue to stop such use with a restraining order. Exceptions abound, however. If a restraining order is granted, a party may still file a Motion with the Court for permission to use the communications as evidence.
Also, the Evilsizor case had a spouse who went arguably overboard with his email information, using the messages and emails to share with friends, family, and other loved ones of the spouse with the primary purpose of wanting revenge. This activity, combined with the harm caused by Sweeney's use of the phone's media accounts (emotional distress, harassment, loss of sleep, embarrassment in the community) made a good case for a restraining order. Conversely a more subtle use of the media (i.e. the emails are only used for hearings/trial, and are presented as an Exhibit before and during trial, but not disclosed to those outside the family law matter) will likely not merit a protective order under the DVPA.
For further questions on this topic, please feel free to comment below, or call me at (951) 276-0500.