You want to know what your debtor is hiding from you but you’re not sure if it’s okay for you to secretly look through your debtor’s phones and computers.
Although privacy laws vary state by state, as a general rule, you should be more cautious than not in this territory. In New York, for instance, you could be convicted of a Class A Misdemeanor if you access or use a computer without authorization. You might even risk running up against federal law.
Say you want to take a look through your debtor’s files on the family computer–the issue boils down to whether or not you are authorized to access the computer. If the computer is a shared computer, the answer is probably going to be yes. If we’re talking about password protected files and computers, things get a little murkier.
If the computer or file was password protected, did your debtor willingly give you the password at some point? If he did, you probably have authority. If not, steer clear.
If you’re thinking about trying to crack your debtor’s work blackberry or work computer, don’t. You are not authorized to view information on devices paid for by your debtor’s employer and you do not want to risk accessing his employer’s proprietary business information. Be careful. Judges do not hesitate to exclude evidence that was improperly obtained. What’s the point of gathering information if you’re not going to be able to then use that information in court?
We like to take a cautious approach here. If you’re authorized to use the computer or phone, take a copy of the hard drive, preserve chain of custody by properly bagging and tagging it, and then let the judge decide what you can look at. Patience pays off. This approach may take longer, but it will be worth it to avoid the potential exclusion of probative evidence, ethics inquiries and possible criminal penalties.