Wouldn't you like to be able to prove that your former spouse is living with someone else, without having to spend a small fortune? Wouldn't it be nice to have "eyes" on the whereabouts of your former spouse without the need for the intrusiveness of surveillance video? And wouldn't it be nice to neutralize an alimony dispute relating to cohabitation with objective, cost-effective evidence? Welcome to the utility of cell tower location data in family law cases.
"Cohabitation, the Termination of Alimony and Cell Phones," was the first of a series of articles introducing the use of cell phone data to prove or disprove the element of "living together" in cohabitation claims related to the termination of alimony. It was followed by an article entitled, "Cohabitation and Alimony - Do the Current Laws Make Sense?" posing the question of fairness of spousal support in the face of evidence of cohabitation. Today, we take another look at this interesting use of technology in family law cases. In a recent decision by the United States Court of Appeals for the Fifth Circuit relating to the ability to obtain historical cell phone location data in criminal cases, the Court determined that cell site information is a "business record," the discovery of which does not violate privacy protections afforded under the federal Constitution. It was pointed out that historical cell site information does not reveal the contents of a call, but rather, only the location information.
The determination that cell tower location data is a "business record" is significant in civil litigation, in that it effectively undermines the strength of an opponent's objection arguing "privacy protections," when faced with a subpoena requesting these documents. What impact might this have on family law cases? Well, imagine this conversation:
"I think you're having an affair. Where are you every night after work?"
"You're absurd. I go to work, and I come home."
"I think you're meeting your lover. You don't come home until after midnight every night. Where are you going?"
"Am I? Let me see your cell phone records, and we'll see who's crazy."
Or, this one:
"I've been giving you alimony for over two years, and you're living with someone else. I'm going to terminate the alimony payments because you're cohabiting."
"No, I'm not."
"Yes, you are. Your lover has been living in your house for over ten months."
The above scenarios are just two situations in which the availability of cell tower location data could be very persuasive in a very specific circumstance. In the first scenario, the cell tower location data may reveal that, indeed, the accused party is simply working late and traveling from home to work and then back again. Or conversely, it could reveal just the opposite. In the second scenario, the cell tower location data may reveal that a third party is living under the same roof as the person receiving alimony, evidence of a possible cohabiting relationship. Historically, these issues would rise or fall on the testimony of the parties, investigative reports from private investigators and other evidence gathered during discovery. This is often a prohibitively costly proposition. Cell tower location data provides objective evidence to support or refute the allegations, thereby eliminating the "catch me if you can" aspect of such claims. As a bonus, the costs involved in obtaining these records are significantly lower, resulting in substantial overall savings to someone using them in litigation.
It seems from this recent decision that there is no expectation of privacy in determining where you are located when you are using your cell phone (remember, the content of your conversation may still be still protected.) The information stored by your cell service carrier could be used to prove or disprove your whereabouts in a number of situations. Would this information have been useful to you in the past? Can you envision a scenario where it would be useful to you in the future? Please share your thoughts!
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