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Digital Privacy: Does Your Separation Agreement Have It?

When negotiating an agreement about your divorce, you think of dividing assets like the cars and the house. But people don’t always think about their digital property and privacy. There probably aren’t lots of “boiler plate” paragraphs in separation agreements but you should ask your attorney to address it.

What is Digital Privacy?

My definition of digital privacy in divorce cases includes your ability to exercise sole exclusive use and ownership of your personal data, be it by key keypad, smart phone or computer. While there are legitimate and lawful purposes for using each other’s personal data, such as applying for social security benefits or filing tax returns, there are many other uses your ex might want to make of your data, even if it is just being nosey.

Protected Information

A good separation agreement should define what type of information should be protected. Your ex should be required to maintain the confidentiality of your personal data, such as financial records, legal affairs, medical records (including any substance abuse or mental health records), employment, records, and military or school records. Social security numbers, taxpayer identification numbers, passport numbers, date of birth, mother’s maiden name, or any other similar identifying information should be held in confidence. Require other identifying information like your online account numbers and passwords, ATM transactions, your credit report, personal identification numbers (PINs), and info for online shopping web sites such as Pay Pal or Amazon to remain confidential. Posting or other sharing embarrassing and/or sexually explicit or sexually suggestive material should likewise be prohibited.

Access and Security of Digital Data 

By the time you’ve shared a child or a marriage, you can probably guess each other’s passwords or PIN numbers. Your first plan of attack is to change your passwords and other barriers to access. Get a copy of your credit report and close accounts you no longer use. In the agreement, list examples of what is considered a violation. The most common examples are accessing the other party’s Facebook or other social media account, accessing his or her phone, text or voice mail messages, and e-mail messages.

Public Embarrassment and Humiliation 

The law related to social media and what can or cannot be used or posted is constantly evolving, as is the technology we use. It can be difficult to determine what is, or is not, acceptable because these issues implicate Constitutional freedom of speech and the definition of what is a crime. There are thousands of situations that could arise. Still, that doesn’t mean you should not at least try to include types of protections in your separation agreement.  An agreement can’t cover every instance of mean-spirited posts on social media. Draw the line at posts about sexual activities and images exposing intimate body parts. Include electronic or written communication, photographs, video, texting, tapes, audio and other recordings. 

Use of Personal Data

Understanding that the terms of an agreement might not always be enforceable in light of a balance between freedom of expression and bad or criminal acts, it is still wise to make the intent of your agreement clear. Specify that neither spouse can use (or enable a third-party to use) the other person’s data to commit fraud or a criminal act or to disparage, harm, negatively affect the other party’s public image, reputation, or business, school, or career prospects, coerce, harass, intimidate, demean, humiliate, or cause financial loss to, the other party.

Remedies

If your ex violates the agreement, he or she should be required to indemnify you. This means that if you are financially harmed, your ex must reimburse you. One example of financial harm you might encounter (and which should be included in your agreement) is payment of a reasonable amount for hiring a professional third party to correct the circumstances and testify as an expert. These rights are in addition to any civil or criminal remedies available to the enforce the agreement, such as an injunction, which is an emergency order that can immediately require someone to do something or stop doing something until there is a trial.

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