Privacy, and the protection of individual privacy, is a right that has long been tied into our Fourth Amendment rights: those which protect us against unreasonable search and seizure. However, with the advent of modern communications technology, this right to privacy has become increasingly difficult to define and defend. Cell phones, the internet, e-mail—all of these new mediums have made it difficult to distinguish between “public” and “private” space, and the establishment of the Electronic Communications Privacy Act has only just begun to define those boundaries. It is from this confusion that shared privacy has been created.

What is “shared privacy?”

“Shared privacy” is a term that is used to describe private information that is not exclusive information. For example, the private e-mails between a husband and his lover that are sent on a family computer, or a private IM log that is saved on a public library terminal. Here, the boundaries of privacy are blurred. While the information itself is “private” information—information that would normally be protected under the Privacy Act—the fact that it is present in a shared location (public computer, family cell phone, etc.) makes it private information that belongs to more than one person. The privacy is “shared.”

Shared Privacy and “Fault” Divorces

One of the points where shared privacy becomes problematic is when the people who share it are in conflict with one another. In the case of divorce, the boundaries of shared privacy are often stretched to their limits.

At this time, there is no law in place to decide the boundaries between shared and un-shared privacy in a marriage. And in a “fault” divorce, where one party is trying to gain an upper hand, it is difficult to determine which text messages, voicemails, e-mails, and other types of electronic evidence can actually be used in court.

How do I know what qualifies as “shared” information in my marriage?

As a general rule, shared privacy items are those which both partners have access to on a normal basis. The information in shared e-mail accounts, shared cell phones, and family computers would all, for example, be likely to qualify as “shared privacy” sources. But even normally-private information might be admissible if a spouse shared his password—even once—with his or her partner.

Think of it this way: if it is necessary to “break in” to an account or device in order to obtain information, then that information will almost always be suppressed (it will be unusable in court).

If you have information that you want to keep private from your spouse, make sure that it is password-protected and keep your password to yourself. And remember which territory is exclusively yours. If you are driving a vehicle owned by your spouse, for example, it is mostly legal for them to bug or track it. While most cases aren’t that extreme, it is wise to be aware of your personal boundaries—especially if you sense an impending divorce.

Do I need a lawyer for my shared privacy issues?

A lawyer is especially important with grey-area issues like shared privacy. In the case of a divorce with shared-privacy issues, it would be advisable to speak to a divorce lawyer. If your shared privacy issues lie outside of a romantic relationship, consult with a constitutional attorney instead.