More often than not, when clients ask lawyers questions about cyber or personal security, during a negotiation or disagreement, those questions find their way to me, as the general manager—mostly because it’s my job, at the firm, to know about these things. While I am not a security expert in any way, shape, or form, we decided it could be helpful for clients, and potential clients, to read an article on the general topic of security, especially when involved in a sensitive legal matter that they are considering bringing to our lawyers.
Disclaimer: This article is not a substitute for legal advice. No action in regard to your particular matter should be taken until you have first sought full legal or professional advice from a lawyer fully retained to act on your behalf. This article is purely for informational purposes.
The Spectre of Consumer Spyware
In recent months, I have been told of cases in which an ex romantic partner has installed consumer spyware on a client’s mobile phone. If you are involved in a legal matter in which there are opposing sides—especially a breakup, separation, or divorce—you should consider a review of your cyber security.
Make a private and well-secured list of all your devices and accounts: phone, laptop, tablet, Facebook, Instagram, Gmail, iCloud, Etsy—all of it. It is important to note if the other party could’ve had unsupervised physical access to any of your devices or accounts—meaning, if your partner had access to your phone while you were away, for example, you should consider a full reset, secure wipe, or replacement of that device. After you do that, go through the devices and accounts, one-by-one, and decide whether you can reliably reset devices, passwords, and access, or deactivate them entirely and start over—which can be the safer option because, sometimes, it’s better to start fresh, if you can. Remember to backup any images and other data to a separate storage device, such as a USB flash drive. Also consider Two-Factor Authentication (2FA), so you know when someone, other than you, is attempting to access your data. The second factor of “two-factor” authentication is often you essentially saying “OK, it’s really me logging in” on your mobile phone, before you can log in using your computer or other device. If someone other than you attempts access, you will receive a notification.
For the most email protection, we recommend an encrypted email account, such as a free ProtonMail account, which enables you to password protect selected emails.
If you think your mobile device could have been compromised, please note the following: if you have an Apple iCloud account and/or Apple ID, I highly recommend changing the email associated with this account to a new, secure email address, and updating your password to something very different and difficult to guess. The reason for this is that (at the time of this article) there are consumer spyware companies that provide internet based tracking using only your Apple login credentials. If you have an Android device, I recommend backing up any images and performing a factory reset, deleting all applications from the phone, or replacing the device entirely, starting fresh, without migrating any data or applications. Similarly, the reason for this is that there are hidden applications that can be installed on Android devices that can track your activity.
Being Followed on Social Media (in a Bad Way)
As part of any cyber security review, you should consider any tracking of your movements and behaviour via social media. (Limiting or stopping social media activity, in general, is a good practice when involved in litigation or potential litigation.) Read up on the various levels of blocking or privacy and consider also blocking individuals who may relay information to an unwanted party. For example, in the case of an Instagram account, consider making your profile private (if it isn’t already) and blocking related profiles (e.g., your former business partner’s siblings). Another option could be abandoning your Instagram account and starting a new, private, secret profile, with an alias that you only share with trusted contacts. This way, your unwanted follower thinks you’re not doing anything, which can be a covert method of de-escalation.
When it comes to the legal system, evidence is everything. In that regard, the best defence is your phone, covertly recording. In Ontario, it is legal for you to record a conversation without telling the other party, provided at least one party to the conversation knows that they are being recorded. Put another way, you cannot record two people having a conversation without their knowledge, but if one person (who is party to that conversation) is aware they are being recorded, that’s legal. As a further example, if you want to record a conversation between you and your partner, in which your partner is admitting that they stole property from you, you can legally do that.
It’s important to note that recording someone—whether you’re taking a photo of them trespassing on your property, or videoing them following you down the street—can escalate the situation, sometimes dangerously. It can be a difficult challenge but try to be prepared to record incidents while keeping it completely covert. One possible method is to keep your phone on a pocket clip. Even if it’s not pointed directly at what’s happening, it can record useful evidence. You could also consider a “Dashcam” for your vehicle—which can also come in handy for motor vehicle insurance claims. Whatever device you choose, at all times, your personal safety should be the top priority.
Remember to take screenshots of text messages and emails, and back them up to a secure location like Google Drive or Dropbox. To learn how to take screenshots, you can search the web for articles on how to do this with your specific device. Uploading those images to cloud services should be fairly straightforward or self-explanatory, once you register for that service. Again, if you’re unsure how to do this, a quick web search will tell you how to upload files to the cloud. Once in the cloud, evidence can be easily shared with your lawyer and the police, if necessary.
Internet Protocol (IP) or Network Cameras
There are specific municipal by-laws regarding “excessive fortification” (i.e., too much security), but, at the time of this article, it’s largely legal to point security cameras at your own property, in Ontario. If you are concerned about unauthorized access to your property, stalking, or intimidation, recording these moments is key to making your case for theft, vandalism, or criminal harassment. IP cameras from Nest can be expensive but can make for an easy solution that should play well with your respective digital devices. Nest cameras can be configured to send immediate or near-immediate alerts to your mobile phone. In our business, I’ve seen people make false statements that are proven false only by video surveillance evidence. I highly recommend documenting any activity that infringes upon your legal rights with an IP camera.
Never Engage the Other Party Physically or Make Threats
It’s important, in the eyes of the law, to be seen as not escalating conflict. If you feel you cannot safely engage the other party, you should avoid contact entirely, and ask a lawyer or the police for advice. If you are, for example, approached by an angry partner in a shopping mall, it is best to withdraw from the interaction, unemotionally. You could, for example, indicate that you’re in a hurry and it’s not the best time. If you ever feel unsafe or physically threatened, dial 9-1-1 immediately. If you make retaliatory threats, this can cloud any legal proceedings. It’s important to appear polite and unemotional, at every step—in all correspondence and communication—as hard as that can be. You can save the emotion for private meetings with your lawyer or if the law eventually rules or acts in your favour (privately expressing that emotion to friends or family).
In conclusion, it’s best to start fresh with new devices and accounts (if you think it’s possible they’ve been compromised), install IP cameras and record or document any interactions, and, at all times, remain safe, unemotional, focused on de-escalation, and non-violent in any interaction with the other party. Remain focused on the long-term goal of living free of conflict. You just have to weather the storm by letting the justice system do its work for you. Again—and we cannot emphasize this enough—if you ever feel physically threatened or in danger, contact 9-1-1 immediately.
If you have any questions about your legal rights, please do not hesitate to contact us.