Smart home technology has become increasingly common. Devices located throughout a home can create recordings, histories, logs and other electronic information. When a marriage ends in divorce, some of that information may become relevant evidence.
What Are Smart Home Devices?
Smart home devices are internet-connected devices that can often be controlled remotely through a smartphone, tablet or computer. Common examples include:
Smart speakers and voice assistants. Devices such as Amazon Echo with Alexa and Google smart speakers respond to voice commands and can control other smart devices, play music and provide information.
Smart security cameras and doorbells. Devices such as Ring video doorbells and other security cameras can record video, audio, motion events and information about people entering or leaving a home.
Smartphone voice assistants. Apple’s Siri and similar voice assistants can respond to voice commands, answer questions and interact with applications and connected devices.
Other smart devices include thermostats, lights, locks, plugs, appliances and home-security systems.
It is important not to assume that every smart device continuously records everything occurring around it. Different devices collect and retain different types of information. Depending upon the particular device, service and account settings, the available information might include audio or video recordings, voice-command histories, motion events, timestamps, device activity and other electronic records.
Some of this information could be relevant in a divorce proceeding. For example, it might provide evidence concerning activities in the marital home, when someone entered or left the home, or conversations that occurred there.
Massachusetts Law and Secret Recordings
The use of recordings from smart home devices raises an important issue under Massachusetts law.
Massachusetts General Laws c. 272, § 99 prohibits certain secret interceptions of wire and oral communications. The statute defines an “interception” as secretly hearing or secretly recording a communication through an intercepting device without prior authority of all parties to the communication.
The distinction between a secret recording and a recording that the participants know is being made is important. If a person knows that the conversation is being recorded, the recording is not a prohibited “interception” under the statute merely because the person may not know the identity of the individual making the recording.
Smart home devices can therefore present unusual issues. Whether a recording violates Massachusetts law may depend upon such questions as what the device was doing, whether it was actually recording a communication, and whether the people whose voices were captured knew or had notice that the recording was taking place.
A person involved in a divorce should not assume that a recording is lawful merely because it was created by a smart home device located in the marital home. The circumstances under which the recording was made matter.
Obtaining Smart Home Evidence During a Divorce
If smart home information may be relevant to a divorce case, there are several possible ways to obtain it.
Access to Your Own Devices and Accounts
If you lawfully have access to a smart home device or an account associated with the device, you may be able to review or download information maintained through that account.
The type and amount of information available will depend upon the device, the service provider, the user’s settings and the provider’s retention policies.
Discovery From the Other Spouse
Smart home information may also be requested through the normal discovery process.
For example, if the other spouse controls an Amazon, Ring or other smart-device account, discovery can request relevant recordings or other information that is within that person’s possession, custody or control. The account holder may be able to obtain information directly from the provider through his or her own account and then produce responsive information in the divorce case.
Can You Subpoena Amazon, Google or Another Provider?
You can try to subpoena these companies. However, federal law limits when technology companies can disclose the contents of stored electronic communications. Even a properly issued subpoena may not require the company to provide the information.
It may therefore be easier to obtain the information directly from your spouse through the normal discovery process rather than subpoenaing Amazon, Google or another technology company.
Smart Home Technology Can Create Unexpected Evidence
Smart home technology is designed primarily for convenience, security and home automation. Nevertheless, the electronic information created by these devices can become evidence in a divorce.
A video doorbell may show when someone entered or left a home. A device history may establish when an event occurred. A voice assistant may retain information associated with commands or interactions. A security system may maintain records of activity at particular times.
At the same time, the existence of potentially useful information does not necessarily mean that it was lawfully recorded, that a technology company can be required to produce it, or that it will ultimately be admissible in court.
Anyone involved in a contested divorce should therefore be aware of the information being generated by smart devices in the home and should obtain legal advice before attempting to record conversations, access another person’s account, or obtain information directly from a technology provider.
As smart home technology becomes increasingly integrated into everyday life, electronic information generated inside the home is likely to continue appearing in divorce and other family-law cases.
