Digital Privacy Clauses on the Rise

September 18, 2016

Celebrities and power couples increasingly want digital privacy clauses and protection in their prenups and postnups, but perhaps everyone ought to think more about them.

What exactly is a digital privacy clause? It is an agreement that one spouse cannot use or reveal in divorce court the other’s personal information that has been transmitted digitally whether by text, FB, e-mails, or even stored on a computer.

A few thoughts about this brave new world of digital privacy:

1) It is unclear whether or not such clauses will be enforceable because generally agreements as to behavior are less likely to be enforced;

2) Secondly, I can see many constitutional arguments being made against this kind of protection; and

3) However, the fact that couples are even discussing such issues reflects our growing awareness of how exposed we all are if a former lover or spouse decides to turn into an enemy.

There has got to be a solution to the fact that what used to be “pillow talk” about finances or tax issues or questionable business practices or just your secret fears now often has been transmitted in digital form and therefore could become real evidence against you.

The fact that our privacy no longer exists is even more shocking in the context of the break-up of what once was a confidential loving relationship. Digital privacy clauses at least set the stage for some confidentiality and dignity on divorce, which in and of itself is a good thing.

Allen, Glassman & Schatz, LLC