’TIL TEXT DO US PART

04.17.14

Does Your Marriage Need a Digital Privacy Clause?

Celebrities and power couples are asking for digital protection in their pre- and post-nup marriage agreements, but having something to hide isn’t necessarily the reason.

The breakup, makeup, and alleged breakup again of figure skater Johnny Weir and his husband, Victor Voronov, has captivated media and skating fans alike. The flamboyance Weir has long brought to his performances on the ice colored this story as well, from accusations of high-fashion theft to a brewing custody battle for the couple’s dog, Tema. Then there are the more serious mutual allegations of domestic violence. But the contents of a post-nuptial agreement reported to be a last-ditch effort to save the union proved to be even more eyebrow-raising than many of the allegations Weir and Voronov hurled back and forth at each other in the media and in court.

According to reports, the post-nup contained provisions requiring Weir’s mother to stop meddling so much (a request many unhappy spouses dream of!) and another, more unusual demand: specific restrictions on whom the couple may text and what kind of texting is appropriate, with specific language to address “sexting.” (Voronov previously alleged texting proof that Weir had been unfaithful.)

Weir and Voronov are certainly not the first couple to be undone by text messages. According to reports, Tiger Woods’s affairs were uncovered as a result of intercepted text messages by his wife.

But here’s a question: Should spouses be permitted to access each other’s texts or email at all and use them in litigation during breakups? Increasingly, high-powered couples are determining the answer is no, and are going to great lengths to ensure that a spouse cannot do so without repercussions. Specifically, more couples are beginning to request digital privacy clauses in prenuptial and post-nuptial agreements.

According to Steven J. Eisman, a matrimonial lawyer with Abrams Fensterman, “In a prenuptial or post-nuptial agreement a digital privacy clause is put in place so a spouse can’t reveal the other spouse’s personal information in court if a divorce were to occur. This includes all digital devices, for example, smartphone, computer and tablets.” Eisman explained that digital privacy clauses are distinguished from traditional non-disclosure agreements in that most NDAs have exceptions for courts of law. But digital privacy clauses can specifically preclude a spouse from using anything gathered on a laptop or cellphone in divorce proceedings. This is particularly important for public figures, where confidential information revealed in divorce proceedings can prove particularly damaging.

Eisman said the number of clients requesting them, and the number he has advised to seek them, has increased in recent years. “We live in a digital age where we rely on our computers to do just about everything. From our taxes to banking information, it’s all done on our computers and online.” He added, “In order to keep my clients out of the public eye and for their best interest, I’ve been discussing digital privacy clauses more frequently.”

Ensuring that an angry ex can’t use certain emails, texts or social media during disputes is not simply a matter of being discreet, but being a smart businessperson.

Vikki Ziegler, a partner at Ziegler and Zemsky LLC, said she noticed an uptick in requests for digital privacy clauses “about eight years ago, when social media and access to personal computers became popular to use as evidence in divorce trials.” She added that, “Written information in the form of emails, social media postings, online information such as banking information has been a cause for concern when representing wealthy/high-profile individuals who need a high level of privacy protection in the event of a divorce.”

At first glance, digital privacy clauses may simply sound like yet another way for a wealthy person to gain the upper hand over a less moneyed, less powerful partner in divorce proceedings. After all, a poorer person usually has less leverage in prenuptial agreement negotiations. So if the wealthier partner says, “I don’t want you going through my emails ever or you will face a financial penalty,” one might presume he or she has something to hide—like multiple girlfriends or boyfriends. But what’s at stake for public figures is not necessarily just a secret sexual indiscretion.

Multiple reality stars, from Real Housewives to Kim Kardashian, have seen their exes use allegations that their TV shows are staged as a way to apply pressure during divorce negotiations. This week, text messages were leaked between reality star Tamra Barney and her ex-husband as well as her teen daughter. The messages have proved embarrassing to Barney as she continues an ongoing custody battle. Corporate titan Jack Welch had his image tarnished during an acrimonious divorce not by the affair that initially triggered the divorce, but by details about the couple’s lavish lifestyle, financed in part by his former employer, GE. For these individuals, ensuring that an angry ex can’t use certain emails, texts or social media during disputes is not simply a matter of being discreet, but being a smart businessperson.

But public figures are not the only ones who need to weigh the costs and benefits of digital privacy clauses. Catherine Zang, of Cincinnati, Ohio, discovered her husband had been using surveillance equipment to record her in their home, and software to copy her emails and record who she was corresponding with online. But law enforcement and the courts were torn on how to adjudicate the matter. Her husband, Joseph, a homebuilder, was legally permitted to use such equipment in the home they shared, since he lived there too. But most privacy experts agree that engaging in such monitoring without his wife’s consent was a gross violation of her privacy.

Ultimately, Joseph Zang wasn’t prosecuted, but a judge threw out much of the evidence recorded by him in their divorce proceedings. The Zangs’ case reinforced just how far laws often lag behind technology. But if the Zangs had a digital privacy clause, the matter would have at least been somewhat clear-cut, and regardless of the judge’s ruling any of the information obtained by the husband would not have been allowed to become public at all.

Eisman said these clauses are likely more common than we think and will continue to gain in popularity, particularly among those in positions of prominence and power. “There is a lot of talk about certain politicians who have gone through divorces where allegedly their spouses have gotten information off their computers and put it in safe deposit boxes,” he said. “There are rumors. You never know. There are people at high levels, whether corporate or government, who discuss all sorts of things in email.”