The Ashley Madison breach placed a spotlight on core issues about modern culture, technology and the family. The legal, personal and social consequences are significant. There have been suicides; there will be divorces, firings and embarrassment.
Technology facilitates many things, including cheating. It also facilitates embarrassing disclosures that are susceptible to hacking and therefore global exposure.
An anonymous hacker group – self-named The Impact Team – hacked the online cheating website and threatened to release the stolen information if the owners did not permanently shut down the site. The owners didn’t and the hackers uploaded around 30 gigabytes of stolen data onto the dark web exposing the account information of the users of the site, company financial data, and employee salary information. Thus far, two suicides have been linked to the hack, the CEO has stepped down, and exposed users have filed a $567 million class action suit against the owners.Privacy rights are intended to protect intimate, personal and private information. Privacy has been under siege from the government, new media, friends and us. In the Facebook era people willingly expose the dinner plans, relationships, current locations and cute pictures of their pets. It is a good bet that participants in the Ashley Madison website did not intend to disclose their participation and that they feel violated and harmed. But do they have any protectable privacy interest? Probably not. Could they sue Ashley Madison for negligently maintaining a website? Sure. But that’s a difficult choice for several reasons. First, that litigation will draw yet more attention to their actions. This dilemma is the “plaintiff’s paradox.” Second, they will have a difficult lawsuit. Some companies such as Target were successfully sued by victims and customers for lax security. Target had provably lax security and a slow response to security breaches. Proof of negligence when a company was attacked by sophisticated hackers is not easy.
There is usually a wrongdoer everyone can agree upon – the hacker. Except, no one knows exactly who that is yet and we may never know.After the hackers posted the Ashley Madison information, the feeding frenzy began. Once the sight is hacked and became accessible the “republishers” began posting, writing and identifying participants. US law has generally protected republishers of hacked or even illegally obtained information. US courts reject anything that smacks of prior restraint of speech. There are some limits for republishing illegally obtained information, but not many. The US Supreme Court in the well-known Bartnicki case said right to publish stolen data is not absolute, intentionally exempting “disclosures of trade secrets or domestic gossip or other information of purely private concern”. So there may be some window for remedies to stop some republication unlawful hacking.
Participation in Ashley Madison’s website exposes certain human frailties. Those covert thoughts or intentions to cheat are now exposed. In the new world of glass houses and global hacking the secret thought or private action is now a public soap opera.
From a family law perspective, it might be argued that Ashley Madison as an entity is antithetical to the principles that we hope govern adult relationships, marriages, and families. Using technology to facilitate extramarital relationships, or relationships outside of monogamous non-marital relationships, has been with us for some time (text messages and email have gotten more than one person in difficulty). The irony is that cheating was more private before technology; technology actually makes cheating far more visible, rather than more secret.Indeed, technology and the sharing of our lives (as opposed to the involuntary sharing in the Ashley Madison scenario) make technology a target for use in family law. For example, a New York court just recently rejected an argument in a divorce that a spouse’s Facebook page was private and not discoverable. The husband in that case wanted to use the page to document his wife’s travels and time away from home in order to substantiate his claim in their custody battle that he has been the primary parent of their 4 year old, and therefore deserves a greater share of parenting time.
The evidence of infidelity in marriage and other relationships exposed by the Ashley Madison scandal also suggests that it is commonplace, and that perhaps challenges us to explore the nature of intimacy and the expectations that we attach to modern marriage. Since so many people are in non-marital relationships it also challenges us to think about what principles attach to what have been assumed to be monogamous relationships. Our principles of trust, respect, commitment, and love are regularly violated by our sexual actions. Does that mean it is time to rethink or restate those principles? If we do, how might that be reflected, if at all, in law? One might argue that process has already begun, given the relative infrequency of criminal or other consequences for adultery or cohabitation (and the assumption by many that it is no longer the role of the state to enforce rules of sexuality for consenting adults).
The fallout from Ashley Madison is human fallout, but not necessarily legal fallout. While many jurisdictions maintain divorce statutes that incorporate fault, and adultery is one category of fault, all statutes offer the alternative of no fault divorce, and therefore of essentially ignoring what a spouse may or may not have been doing if they were registered on Ashley Madison. Damage is certainly done to family relationships, and the perception of failed family relationships may be perceived as reason to distrust a person in other aspects of their life. But family law may ultimately have little to say formally about this, in the name of individual choice about intimate matters. Evidence of such extramarital conduct (or conduct in relation to a committed monogamous nonmarital relationship) may nevertheless continue to impact more indirectly family law proceedings, and have a significant social impact.
Just as many individuals and organizations have the potential to be viewed as the wrongdoer, the cheater and his or her significant other are not the only victims of the privacy breach. Children, grandparents, friends, and colleagues will also suffer as a result of the hack. Relationships will change, and families will redefine themselves. While adults likely have the life experience to process how the infidelity will affect their relationships, children will experience unique difficulties. Children are less able to understand the implications of the Ashley Madison leak, and many will be unaware that their family is now in the public spotlight. As they come of age, these children will likely learn of the hack and their parent’s involvement therein simply through a Google search.
The internet has forever changed the disclosure of information from parent to child. Children now have the ability to access a wealth of information about their parents, both throughout childhood and beyond. The Ashley Madison hack reminds us that for many parents, the internet redefines the term “family secrets,” as this new platform for communication changes the lens through which we share both public and private information. While children might appear to be silent victims now, perhaps recognizing them as such gives weight to the argument the government should sanction the resharing of such personal, private information.