THE BLOG
02/23/2011 11:18 am ET Updated May 25, 2011

iPhone vs. Blackberry - Cheaters Beware

Recently, Apple made its hugely popular iPhone available to Verizon Wireless subscribers. Technology analysts estimate that, in the next 12 months alone, Apple may sell as many as 15 million additional iPhones for the Verizon network. Very few of those purchasers will likely consider whether the iPhone makes snooping or tracking by their spouses (or divorce lawyers) even easier. But perhaps they should.

As a divorce lawyer in today's technological age, it appears that virtually every cheating spouse is discovered through indiscreet emails or text messages discovered on a so-called "smart phone". The recent celebrity divorces and break ups of Tiger Woods and Elin Nordegren, Eva Longoria and Tony Parker, and Jesse James and Sandra Bullock illustrate that affairs are no longer discovered by busting into seedy motels by paparazzi with flashbulbs ablaze; it's as easy as picking up the spouse's cell phone.

In one of my firm's cases, a client suspected his wife of cheating. One morning, when she went into the shower and left her cell phone behind, he handed it to a computer forensic specialist waiting in the hallway outside the apartment. Within minutes, the specialist had downloaded all of the information on the wife's PDA which showed she was having an affair with a co-worker. To avoid any potential embarrassment, the woman settled the case shortly thereafter. In another firm matter, our client discovered several text messages and emails to a "call girl" on her husband's iPhone, revealing not only the identity of the "call girl", but the amount of money that he spent for her "services". The information gleaned from the iPhone bolstered our client's claim for wasteful dissipation of marital assets.

Cell phones most frequently provide divorce attorneys with evidence of extra-marital affairs and the amount of money that the spouse spends on jewelry, vacations and other gifts for the paramour. However, nowadays, cell phones also contain information about undisclosed assets in spreadsheets, clandestine meetings on personal calendars, and sensitive business documents. "Smart phones" can contain financial information (such as Quicken spreadsheets) that definitively proves the parties' marital lifestyle, bolstering a spouse's claim for alimony. So, given all of the information that can be discovered on your phone, the question is: should you rush out to get the Verizon iPhone or stick with your more utilitarian Blackberry?

Both devices contain a wealth of information ripe for discovery by prying eyes --whether they are those of a suspicious spouse, diligent divorce lawyer or law enforcement official. However, unlike a Blackberry, the iPhone typically retains information that the Blackberry can delete in its entirety. Similar to a personal computer, when the user attempts to delete information from the iPhone, such as emails or texts, the information (or at least remnants) usually remains embedded in the device for later discovery. In addition, the iPhone's default settings embed all photos with GEO tags that record the user's whereabouts. Many iPhone Apps - even if they do not have a mapping function - actually store the user's location. The Blackberry does not track the device's location unless an application has been authorized to do so.

However, the iPhone does have its advantages over the Blackberry. The Blackberry is much more susceptible to illegal surveillance. There are many commercial spyware applications available for installation on a Blackberry. Such spyware can surreptitiously record all emails, texts and phone calls on the Blackberry, even if the user attempts to delete them. Some spyware applications allow the Blackberry to function as a remote microphone, allowing the installer of the hidden program to eavesdrop on all communications in the device's location. Although use of this spyware is a violation of federal and state wiretapping laws, that does not prevent its use by the unscrupulous lurking among us. Unlike the Blackberry, these spyware applications are not available for the iPhone since Apple serves as a gatekeeper and must approve of all third party Apps for the iPhone.

So, if you have reason to be worried about a suspicious spouse, or divorce lawyers like me armed with computer forensic experts waiting to dig through your digital history, give careful consideration to which smart phone you purchase. But, if you have nothing to hide, here is my advice: don't buy a cooler phone than the one your spouse has. That's only going to make them jealous.