Let’s face it, we are all amateur sleuths these days, and divorce lawyers are no exception. We use the internet to find a restaurant and a hotel. Inevitably, we also have a look at our clients or their spouses and partners at the beginning of a new case. There have been some disasters, among others an apocryphal story where a divorce lawyer with a new client took a peek at the husband on LinkedIn….and oops! - that was the first news the husband had that his wife was considering a divorce. Everybody knows that the inverted iPhone at home is the tell-tale of infidelity (it avoids the possibility of a spouse seeing the impossible to explain “see you tomorrow at the Travelodge, Big Boy” or similar).
But the amateur detective has his/her limitations and so the divorce world has turned to the professional “digital detectives”, who carry out “social media mapping” and “reputation audits”, e.g. the likes of Kroll and Digitalis. Digitalis, who are London’s leaders in this field, explain that every individual and company leaves a “digital footprint”, an ever-expanding trail of publicly available information on the web. It is no surprise then that online and social media activities are becoming extremely valuable and are relied upon to prove infidelity or hidden wealth in contested divorce cases. It is not just Facebook that can be used to build a case – all information found on Google or indeed the Deep Web can be, as long as it’s publicly available and collected in the correct way.
The wealth of personal information online has made it easier for people to get caught out by their spouses and has made the lawyers job easier too. We have seen a cultural shift in the last five years, where it is now acceptable – and in some cases essential – that we share our lives online. Social media is the main outlet for this and many people disregard (or don’t understand) privacy settings so a wealth of content is available to 3rd party searchers. Add to this the amount of paper archives and public records that are being digitalised by the day, and you will end up with a lot of information online about an individual. This enabled businesses like Digitalis to “use the tools …. and knowledge” of the internet to perform bespoke, open source due diligence and investigation of the target.
But who is the target and when do they become one in divorce? The answer is just about everyone but those turning to digital detectives generally fall into two categories – the poachers or the gamekeepers.
The classic use of the digital detective is in asset tracing, with the purpose of finding evidence, direct or anecdotal, of the existence of income or assets that have not been disclosed to the Divorce Courts. The Guardian article “The Rich Kids of Instagram” makes interesting reading as last year Kroll uncovered multi-million pound hidden assets in a divorce case thanks to the children’s social media post. A husband was ordered to give his wife $30M, but he claimed not to have it. Having cross-referenced geo-tagged sites with Land Registry and other equivalent Registers overseas, various properties registered in the name of their parents were uncovered and the wife got her money.
There is also a defensive role for the digital forensic expert who frequently, through some bright and dark arts, reduce the profile/impact of damaging online information, both pre- and post-divorce. Apparently only 6% of searchers online go to pages 2 and 3 of Google, and beyond that the numbers decrease even more radically and, therefore, pushing helpful information and stories almost out of reach, or cleansing a person’s internet profile can help the impact of unwarranted or inaccurate information.
A canny wife with a philandering husband might want to make sure that her social media documents her lifestyle and travel. There is no doubt at all that every girl looks fabulous standing outside the Panamanian lawyer’s office, Monaco Trustees building or the Swiss bank. In fact, almost as good as - she might standing next to the Leer Jet, especially in sight of the jet tail number. Fathers might also want to make sure that their children’s friends and family members remember their privacy settings on social media – perhaps reminding them of the wartime anti-gossip campaign “Careless talks costs lives”.