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Computer Forensics World :: View topic - Spouse Consent to Search
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Spouse Consent to Search

 
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MACF
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Joined: Mar 31, 2009
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PostPosted: Wed Apr 01, 2009 10:38 am    Post subject: Spouse Consent to Search Reply with quote

Hello Everyone,

Senario: Spouse knows husband is cheating and she is making plans for divorce. She hires private invistigator. Invistigator wants to image computer hard drive for future divorce proceedings. Looking for e-mails to support infedality claims and possible banking information for asset search. Sticky situation = Husband has locked office, which wife has secret key. She never uses the computer and husband has asked her never to use the computer. Computer has a password at logon. Does California law allow for spousal consent under these conditions?

Thanks
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RobertR
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Joined: Jun 04, 2007
Posts: 149
Location: Arizona

PostPosted: Thu Apr 02, 2009 7:41 am    Post subject: Reply with quote

Sounds to me like he has a reasonable expectation to privacy on that machine.... I would not do it on the consent of a spouse that does not have access to the machine
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Cyber_Da_Inv
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Joined: Aug 08, 2006
Posts: 61
Location: Costa Mesa, California

PostPosted: Thu Apr 02, 2009 3:09 pm    Post subject: Spouse Consent to Search Reply with quote

Because she isn't the government, 4th Ammendment doesn't apply. That doesn't mean the divorce judge will allow it into court as evidence, either.
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Cyber_Da_Inv
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Location: Costa Mesa, California

PostPosted: Fri Apr 03, 2009 12:33 am    Post subject: Spouse Consent to Search Reply with quote

The other federal and state laws to be mindful of may revolve around wiretapping (ie: keystroke logging and/or live usage monitoring) and computer intrusion issues.
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MACF
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PostPosted: Fri Apr 03, 2009 2:30 pm    Post subject: Thank you all for the replies! Reply with quote

California is a community property state and the PI and forensic examiner are all public citizens, so I was hoping that in this process there would be no laws broken and at worst the family law judge would not allow it. I've heard it both ways, but I want to know if anyone has had this situation in the past.
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Ellingtond
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PostPosted: Sat Apr 04, 2009 7:19 pm    Post subject: Spouse Consent Reply with quote

we see a similar situation alot and what we do is to image the drive for the purpose of preserving the evidence, BUT we store it and do not access or index it and the client/attornies have no access to it.

Then once the action is filed so the cat is out of the bag the attorney can subponeas the HD from the husband and then lets the judge know of the "preservation" copy. The judge can then rule on whether you are allowed access to the copy.

The point is, in my experience, you can act to preserve evidence that you feel will be compromised or destroyed as long as you do not actually look at it and the forensic examiner escrows it for the client.

We have copied drives, then later got a supoena and copied them overtly, and then busted people for deleting things between the time they got the subpoena and we were allowed access. Then the judge would let us use our first copy to see what was there before they were tipped off.

Simple, IMHO, if you have the chance to preserve evidence and you beleive the evidence is in jeopardy, then copy it, seal it, and let the judge decide.
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Stacia
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PostPosted: Tue Feb 23, 2010 6:52 am    Post subject: Reply with quote

So what If both spouses used the computer and it was not password protected could one or the other give consent to have it copied?
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Thisguy01
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PostPosted: Wed Jan 11, 2012 9:26 am    Post subject: Spouse Reply with quote

The 4th amendment still applies to anything that is found of the husbands with a password or not he still believe that his stuff is private. You would need his permission to copy any of his data. This not being a criminal case its not even worth trying to obtain a subpoena or warrant to copy it either.
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PreferredUser
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Joined: Jan 01, 2007
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Location: USA

PostPosted: Wed Jan 11, 2012 9:55 am    Post subject: Reply with quote

I am glad I am not "thatguy" that resurrects a two year old thread.
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emcrypt
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Joined: Apr 13, 2012
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PostPosted: Tue Apr 17, 2012 2:10 am    Post subject: Thanks Reply with quote

Thanks for resurrecting it as maybe I wouldn't have seen it. I have similar questions.
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PreferredUser
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PostPosted: Tue Apr 17, 2012 2:27 am    Post subject: Re: Thanks Reply with quote

emcrypt wrote:
Thanks for resurrecting it as maybe I wouldn't have seen it.
So you think posters should just randomly resurrect old posts with comments of dubious merit in the hope that someone will stop by and read them? And it is not like this was just posted. Even the post you are referencing is four months old, an age ago in computer time.

emcrypt wrote:
I have similar questions.
And your questions are?
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