Digital Forensics Expert Sharon Nelson speaks at AICPA/AAML National Conference on technologies spouses or lovers use to spy on one another.
Sharon Nelson on Her Presentation:
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About Sharon Nelson:
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Sharon Nelson is the president of Sensei Enterprises, a digital forensics information technology and information security firm in Fairfax, Virginia. She also has a solo law practice and concentrates exclusively on electronic evidence law. Ms. Nelson is the president of the Virginia State Bar, the president-elect of the Fairfax Law Foundation, past president of the Fairfax Bar Association, a director of the Fairfax Law Foundation. She is the current vice-chair of the American Bar Association’s education board and a former chair of its publishing board and she serves on the ABA Cyber Security Legal Taskforce and on its Standing Committee on Technology and Information Systems. She is the author of several books including “Lockdown: Information Security for Lawyers and Law Firms,” published in 2012, and the annually published “Solo and Small Firm Legal Technology Guides.” Sharon Nelson will be presenting at the AAML/AICPA National Conference on Divorce on April 24th and 25th, 2014, at the Bellagio Hotel in Las Vegas.
What will your presentation focus on at the National Conference on Divorce?
We will talk about some of the developments of technologies that are being used when spouses or lovers spy on one another. The spyware has moved from being just on computers to now being on cell phones. We’ve seen perhaps a 70 percent increase in the number of cell phones coming into our forensics lab.
People are always interested in what we can get off of those phones. They know about computers, but they don’t know about digital forensics so much with cell phones and social media. Occasionally, we’ll find attorneys will try to preserve their own social media. That’s not wise because when it goes to be authenticated, you really should have a third-party expert. We’ll talk about how cheaply you can procure a third-party expert in that kind of situation.
They also want to know how technology has changed, and it’s changed very rapidly in the last two to three years. There are ethical implications for everything you do as a lawyer in trying to get this kind of electronic evidence in, whether it’s from Facebook or off a smartphone. The temptation to deceive in some manner can sometimes be overwhelming. We had a recent case where a husband created a fake Facebook account and made himself a lot of friends. Once he had established a credible body of friends and looked like somebody who would be good to know, he friended his wife, who did not know who the phony account belonged to. He was now tracking what he believed to be her demonstration on Facebook that she was an unfit parent. But of course, once he goes to an attorney, the attorney cannot be a part of any continuing deception. We’ll be talking about that case in Las Vegas.
The competitive advantage of having this information is that more up-to-date lawyers have a better chance of landing evidence that could be used against their client, which obviously would be detrimental to their case.
That’s certainly true. In the old days, one of the primary mistakes attorneys would make is looking for social media evidence on the imposing party but forgetting to check the use of the accounts of their own client, who didn’t always quite tell them the truth, as we all know. Clients are not always to be believed and sometimes, even with the ones that seem most credible, there are things out there that we need to know about.
What has been the most striking change in technology in this area of law?
It’s probably related to smartphones because now texts are so much of the evidence we receive. It used to be all emails. That was always the smoking gun. Now it’s in the text messaging. The ability to retrieve deleted text messages has improved greatly and a lot more phones are supported. Companies are understanding that there’s a huge market, so we follow that. People are really astonished when they find out how expensive it is to do this kind of work on an ongoing basis. There are so many new devices each year, and new operating systems and you’ve got to be able to handle them all.
The answer to what can you get, how you get it, and what can I do with it, changes with time, as do factors of admissibility as we get court questions. The authentication piece is very valuable to attorneys.
How do you make sure that social media evidence is admissible in court?
There are some specific tools that we use and they’re not expensive. That’s why I think that an attorney would be foolish not to have an expert simply go in to find and preserve it. Those tools are cheap, the time is small, so get an independent third party expert. And as we all know, these things tend not to go to trial. Most of them settle, so you may not have to worry about the expenses of having an expert come to trial and testify. It’s always better to have the third-party expert. It’s hard to put yourself on the stand.
Is it possible to have your spouse’s phone call you when a call is made so you can listen in?
It is and I think people are sometimes surprised to hear it. Right now we cannot install that kind of spyware remotely, you have to have access to the phone, but I anticipate that will change over time. Everything does. Another alarming feature of this spyware is that not only can you have the phone call you whenever your spouse makes a call, but you can also turn on the phone’s microphone. For instance, a spouse is going out to lunch with three friends, chatting about their love lives and maybe extra-marital love lives. Often we see people, when they do go out to lunch, they put their smartphones right on the table. And if the mic is turned on remotely, the other spouse can hear everything they are saying.
The Full Interview with Sharon Nelson:
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The 2014 National Divorce Conference will be held April 23-25, 2014 at the Bellagio Hotel in Las Vegas, Nevada. Discounts for Early Bird, AAML members, AICPA members and members of Divorce Marketing Group’s LinkedIn group “Marketing for Divorce Professionals” are now available. Click here to register.
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