September 7,
2015
How Digital Forensics Can Help: Divorce & Custody Cases
In the third
of our “How Digital Forensics Can Help” Series, we’ll seek to answer some
common questions about what can and cannot be available in divorce and child
custody cases. These are routinely some
of the most emotionally-driven cases, no doubt because of many factors involved
including separation of assets, child custody negotiations and the underlying
sense of betrayal that comes from sharing your life with someone and having
that changed drastically and perhaps without warning. Don’t misunderstand us, digital forensic
capabilities often will not alleviate any of these highly tumultuous
circumstances. However, we can help
answer many questions that can hopefully bring these situations to an amicable
resolution faster and help both parties move on with their lives.
What evidence is relevant in a divorce?
We routinely
get asked the question about how to obtain the device(s) in question in any
number of cases, divorce included.
Please bear in mind, I’m not an attorney, nor do I fully understand the
legal nuances of what devices and/or evidence may or may not be legally
available to either party in divorce proceedings. Experience has shown us where there’s a will,
there’s a way. Often the competency and
tenacity of your attorney will dictate what course your divorce proceedings may
take, but this article is not only designed for individual parties involved in
divorce cases, but also to help the attorneys know what we can do to help in
these cases.
Recently, we’ve
seen circumstances where a Motion to Compel has been issued by the court, which
forces the opposing party in a divorce proceeding to produce their computer
and/or mobile device for forensic examination.
The motions are very specifically worded and admonish the respondent of
the motion to refrain from deleting any data prior to turning the device(s)
over to the forensic examiner. They also
can include language to provide the examiner with pass codes to examine the
device(s) more freely. This type of
tactic is likely the best-case scenario for your digital forensic expert. By granting the Motion to Compel, the Court
has given us full permission to conduct a digital forensic examination on
whichever devices are named in the motion.
Routinely, the examination will take the tactic of proving or disproving
some sort of infidelity. So what
information is potentially available and what helps us do this? We’ll break it down by device type:
· Mobile Devices (Cell phones, smart phones & tablets)
o
Text
message history: This can be
between the opposing party and a suspected paramour or intimate conversations
with close friends regarding potential infidelity or other malfeasance. Always bear in mind that text messages may be
stored in more than one area of the device, such as messaging apps or games.
o
Internet
history: People incorporate
behaviors with regard to their internet browsing history based upon individual
interest. Was the opposing party engaged
in some online dating activity? Did they
attempt to contact others via the internet to facilitate this? All of this evidence is key to answering
these questions.
o
Email
history: Depending on the type
of device, we can recover email history dating as far back as you can
imagine. Special consideration should be
made, however, to restrict access to privileged material that may be contained
in emails.
o
Mobile
Apps: Mobile devices are at
virtually everyone’s fingertips in the digital age. As such, the apps they use can often help us
identify behaviors and provide concrete evidence that something may be
afoot. Even if we can’t examine the
specific app data due to encryption or other security measures, the mere
existence of some apps may indicate some questionable behavior.
· Computers (laptop, desktop, etc.)
o
Internet
history & emails: Think of
the computer as a graduated version of the mobile device. Chances are much of the same information that
may be contained on the mobile device is also on the computer, which helps with
validation of this evidence. Also
consider the importance of shopping history, pornography and other items that
may help paint the overall picture.
o
Documents: Personal documents, such as financial
records, may be of particular importance in divorce cases. Is there hidden money? Do both parties know what the assets are and
where they are located? Questions like
these may be answered and help lead to a more equitable distribution and faster
conclusion.
Answered
Questions?
Obtaining the
truth is at the heart of every case we investigate. Routinely, we will engage clients who have
strong suspicions about activities their significant other may be engaged in
and we find little to no evidence validating these suspicions. Can your questions be mostly (or completely)
answered with a digital forensic examination?
The answer is maybe. We have
adopted a disclaimer on our engagement paperwork that states, in part, that we
do not guarantee results. A client’s
suspicion of what may or may not be going on with their significant other is
not evidence. We acquire, analyze and
report the evidence that is before us.
We do not engage in conjecture or speculation, which is sometimes
difficult to understand when the emotional stakes are so high.
When
engaging a digital forensic expert in your divorce and/or child custody case,
it is important to remember that in forensics, we seek to prove or disprove a hypothesis based upon the
evidence. We may very well uncover the
proverbial “smoking gun” in your case, which will settle your matter in a very
cut-and-dried manner. However, it is
important for both clients and attorneys alike to realize that the opposite is
also possible and you may be left with more questions.
You have our
guarantee that we will leave no digital “stone” unturned and we will strive to
work with both clients and attorneys to ensure the most comprehensive view of
the evidence is presented, no matter where that may lead. After all, when the stakes are as high as
they tend to be in divorce and custody cases, you deserve to be as
well-informed as you can be to help resolve the matter equitably and without
any additional emotional strain.
Author:
Patrick J.
Siewert, SCERS, BCERT, LCE
Principal
Consultant
Professional
Digital Forensic Consulting, LLC
Based in
Richmond, Virginia
Available
Globally
About the Author:
Patrick Siewert is the Principal
Consultant of Pro Digital Forensic Consulting, based in Richmond,
Virginia. In 15 years of law
enforcement, he investigated hundreds of high-tech crimes, incorporating
digital forensics into the investigations, and was responsible for
investigating some of the highest jury and plea bargain child exploitation
cases in Virginia court history. A
graduate of both SCERS and BCERT (among others), Siewert continues to hone his
digital forensic expertise in the private sector while growing his consulting
business marketed toward litigators, professional investigators and
corporations.
Twitter: @ProDigital4n6
