Except as authorized under the wiretapping, electronic surveillance statute, a person may not obtain, alter or prevent authorized access to wire or electronic communication while it is in electronic storage in an electronic communication system. (11 §2421(a)).
Depending on how the language of the statute and possibly how the app works, this may also raise questions of legality. Divorce lawyers need to be abreast of these technologies and the legal implications.
The Android store has no approval process before apps sold on its site. Another way of stating this is that there is no governance. I discussed this issue previously in the context of Facebook and how there appears to be no governance around the creation and deployment of apps. In that case, personal information was collected unbeknownst to users of the application.
There is no way that Facebook or Android can police all the developers that write apps for their operating systems, just like Microsoft and the GNU Projectscan’t police all the software made for Windows and Linux. The duty changes though when you actively run the system on which the apps run (Facebook) or you sell it directly (the Android Store). In these cases, your duty is elevated. Plus, let’s acknowledge how difficult it is to put in place workable governance when you have so many apps being developed and deployed.
In these cases, risk, compliance, legal and developers, need to partner to come up with workable mechanism. This will likely be a combination of contracts/Terms of Usage where liability is passed off in part to app developers as well as submission and review of questionnaires re the app, which also incorporates a level of due diligence. A risk rating system should be developed to prioritise the assignment of due diligence resources.
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