It has been more than 20 years ago, but I distinctly remember meeting with a new family law client to discuss her recent discovery of a cache of photographic negatives depicting her photographer husband with another female in a variety of poses which the husband, through counsel, later attributed to his "artistic pursuits."
Today, I expect that most young adults under the age of 30 consider photographic negatives to be artifacts, most often found in museums or their parents' attic. The digital age has now been with us for decades. Recent advancements in the creation, storage, synchronizing, and sharing of data, including photographs, have introduced an entirely new level of concern or opportunity (depending on one's perspective) in the practice of family law.
A Primer on Cloud Computing
Cloud computing is a general term for anything that involves delivering hosted services over the Internet. The name "cloud computing" was inspired by the cloud symbol that is often used to represent the Internet in network design diagrams. Apple's iCloud debuted in the Fall of 2011. Of course, this is not the cloud envisioned by computer geeks as early as the mid 1990s. It is, predictably, a much watered down version for the retail market. Nevertheless, iCloud has been embraced by many, vilified by some. With iCloud, the most recent photos snapped with your iPhone, iPod touch, or iPad are automatically available to view on any other iOS device or computer.[1] As soon as you snap a photo, it is uploaded to iCloud and then downloaded to your iPod touch, iPhone, iPad, and/or computer. It is this very feature which has caused a stir in the family law arena.
The Oops! Moment
Ellen and Josh, married almost five years and expecting their second child, decide to purchase a new iPad as a gift to each other. Ellen has always been the "techie" in their marriage. Josh doesn't understand this "new" technology, but loves to take pictures, listen to music via iTunes, and play games on the computer. Ellen has all the requisite Apple toys, including her beloved iPhone which never seems to leave her ear, much less her person. Ellen configures the new iPad and soon Josh has adopted it as "his new toy." Ellen uses the iPad infrequently, but she did use it to snap some pictures of the baby's nursery.
While Ellen is out of town for a baby shower, Josh and his buddies head out for a night on the town. Toward the end of the night, Josh invites all of his buddies and several young women they have met during the night back to the house for a dip in the pool. Well, as fate may have it, the guests don't have bathing suits with them, but that does not stop them from enjoying the water. While Josh has a bathing suit at the house, he has never been one to be a trend setter or eager to embarrass a guest. The rest of the events of that evening are a bit fuzzy for Josh. Fortunately, one of Josh's buddies sees the iPad on the end table and decides he is going to snap a few "candid" shots of the festivities so the guys can laugh over them later.
The next afternoon, the baby shower is in full swing when Ellen talks about all the work she and Josh have done on the nursery. "It is just so beautiful…well shoot, let me show you the pictures we took," and pulls out her iPhone. Utilizing the iCloud feature, she knows the iPad pictures are available to her on her iPhone. She pulls up the photos on her iPhone and hands the device to Aunt Marge. As she scrolls through the nursery pictures to oohs and ahs from several looking over her shoulder, Aunt Marge suddenly exclaims, "Oh my." The crowd becomes strangely silent, and some look away. Ellen leans over and sees the "evidence" from the previous night's debauchery at her home.
The next week Ellen visits a family law attorney and shares this story, and the photos, with the attorney. Ellen is not the forgiving type, and you can rest assured that the photos will play a role in their custody and divorce negotiations and proceedings. Despite Josh's attorney's best efforts to keep the judge from seeing the pictures, the photographs are almost certainly going to be admitted into evidence and the court's rulings will reflect the judge's opinion of Josh's indiscretions.
Broader Implications
This story is fictional, of course, but similar events occur regularly in today's mobile computing environment. The idea that a photograph taken on one device may be shared with a multitude of other devices without any further effort on the part of the picture taker is a relatively new one for the consumer market.
Unintended sharing may have implications beyond family law. While I am not aware of any court decisions specifically on point, I see potential workplace concerns if a user has a device linked with his or her office computer. Of course, none of this would be a problem if everyone followed the rule, "Don't take a picture of anything you wouldn't want your grandma to see."
Conclusion
In conclusion, I understand that the latest version of Apple's mobile operating system, iOS 6, is due out this fall. The iOS 6 system will include a "Shared Photo Stream" feature which, according to the Apple website, will allow you to "…share just the photos you want, with just the people you choose." What a novel idea! Of course, this feature is marketed as broadening the scope of photo sharing but, being the somewhat skeptical attorney that I am, I suspect that Shared Photo Stream's genesis is, at least in part, due to the increasingly common and potentially disastrous, unintended sharing of pictures through the use of iCloud. But, despite the best precautions, it is wise to never forget Murphy's Law.
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