-Caveat Lector-
>From Int'l Herald Tribune
Paris, Wednesday, April 28, 1999
You've Got Mail! As Divorce Sequels Show, You've Got Trouble!
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By Maria Glod Washington Post Service
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WASHINGTON - The words flowed without inhibition. In electronic mail he
allegedly wrote to friends, even to strangers, the 37-year-old lawyer
described his sexual trysts, gushed about his partners and agonized over
cheating on his wife.
''Right now I am in New Orleans with a man,'' one message read. ''My wife
thinks I am here for work, but I'm not.
''I met him on-line. He is married, two kids,'' the e-mail said. ''Italian,
muscles like crazy, beautiful face and eyes.
''You must not print this, and delete all files!! It's good to talk it out,
but dangerous.''
Dangerous is right.
Copies of this and other e-mail messages have been filed at Fairfax County
Circuit Court in Virginia, where the lawyer and his now former wife will be
fighting for custody of their children. The ex-wife says she found the
e-mail messages on computer disks stuffed into a drawer; the lawyer says the
messages are forgeries.
Records of electronic communication, a growing factor in corporate cases
such as the high-profile government antitrust suit against Microsoft Corp.,
have begun showing up in divorce and custody proceedings across the United
States.
Electronic infidelity also has become an issue.
One Virginia man, according to court documents, learned that his wife was
having ''cybersex.'' Furthermore, she ''engaged in chats wherein she has
disparaged her husband and her children.''
Some legal scholars say using the messages as a weapon raises questions of
privacy and fairness.
''I think we need to look at e-mail as something that has to be protected,''
said Paul Levinson, a communications professor at Fordham University.
''Historically, the law has always been limping behind the technology.''
For now, clients are marching into their lawyers' offices with printouts
from their home computers. The search for e-mail, said one lawyer, Marna
Tucker, is the modern equivalent of ''looking through the trash can for
discarded notes.''
And if the client does not broach the subject, the lawyer often does.
''I ask them, 'Is your spouse computer-literate?''' Mark Sandground, a
lawyer, said. ''You're going to say things to your e-mail that you wouldn't
say to your priest in confession.''
Glenn Lewis, who heads the domestic-relations section of the Virginia Bar
Association, said that even the most sophisticated husbands and wives have
let down their guard at the keyboard.
''There are people who wouldn't think about leaving an envelope open on
their desk,'' he said, ''yet they leave a computer that has their love
letters or pornography or chat-room talk.''
At its headquarters in Dulles, Virginia, America Online Inc. is served with
a steady stream of subpoenas for subscriber information, often for divorce
cases. AOL, with 17 million customers by far the world's largest base of
e-mailers, usually is able only to produce records showing how much time a
customer spent on-line, a company spokesman said. But the company
occasionally can recover the text of a message or chat-room exchange, said
the spokesman, Rich D'Amato.
AOL officials said that they responded immediately to search warrants in
criminal cases but wait 14 days in civil matters to give their customers
time for a court challenge.
Spouses most often go after electronic records to prove infidelity or to
show that their partner has emotional problems or is simply spending too
much time on-line to be a good parent.
A 48-year-old Tennessee man asked for AOL records to bolster his claims that
his spouse neglected their family. ''The wife does not clean the house
during the day,'' according to his complaint, ''but rather spends her day
shopping, visiting, meeting her paramours or on the computer.''
Lawyers who use e-mail messages in court argue that such evidence is
valuable because, unlike witness testimony, it gives a firsthand record of
the writer's feelings.
But as with most evidence presented in court, there is plenty of room for
challenge. When spouses share a computer, messages can be written under the
one another's names and existing files altered.
Besides checking files stored on a computer, some people monitor on-line
activity through Internet search engines.
Eric Hester, 33, a mortgage banker from San Francisco who wanted more time
with his sons, age 5 and 7, said he searched under his former wife's screen
name for messages she had posted in chat rooms. He looked weekly for four or
five months, he said.
Mr. Hester gave 30 pages of printouts, including one of a divorce-related
discussion in which one of his sons participated, to the mediator in his
custody case. The mediator did not change Mr. Hester's visiting rights but
did require that his ex-wife, Jennifer Ferrall, no longer include the
children in her chat-room sessions.
Ms. Ferrall, 32, said she used the chat rooms to help her through a
difficult time and described her on-line conversations and her son's
involvement as ''totally innocent.''
''One mom asked how you break the news to a 5-year-old that his mom and dad
aren't going to be together anymore,'' she said. ''I asked my son what he
thought the most gentle way would be to say it, and I posted it.''
Ms. Ferrall said she felt ''sick'' when she learned her postings were being
monitored, but scholars of the Internet say there is no reasonable
expectation for the privacy of posted messages. That is also the case, they
say, with files stored on a computer used by both partners.
Many judges seem to be skeptical of the worth of such evidence, in any case.
A lawyer from Fairfax, Marc Astore, said he recently argued that a client
should have sole custody of his children in part because his wife had talked
in a chat room about feeling suicidal. He and his client thought the e-mail
was ''gripping evidence,'' Mr. Astore said, but a judge disagreed and said
the wife was ''just venting.''
Still, lawyers say the use of electronic communications in court will grow,
and they advise their clients to be cautious on-line.
Ms. Ferrall has taken that advice to heart.
Now remarried and living in the San Francisco area, she still visits a chat
room for mothers. But because of her experience, she said, she chooses each
word carefully.
''I have nothing to hide,'' Ms. Ferrall said. ''But the mediator was very
sympathetic and said to be careful, and I have been.
''E-mail is another tool for 'he said, she said.'''
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