A divorce court judge has issued a stern warning to two former Hartsdale business partners about the use of email tracking software during litigation.
“Beyond creating a significant risk to the expectation of privacy,” Westchester Supreme Court Justice James L. Hyer stated in a Feb. 20 decision, “such technology may also be used to curtail address confidentiality protections … intended to protect parties involved in family law litigation.”
His decision identifies the litigants only by their initials, as is customary in family court. But the details align with circumstances in a 2023 lawsuit where the parties are identified.
In that dispute, a Hartsdale couple and the woman’s father had co-founded a business. When the wife filed for divorce in 2022, the husband allegedly carried out a threat to fire her father, who then sued his son-in-law for alleged breaches of contract. The case is still pending in Westchester Supreme Court.
In the divorce case, the email tracking software was disclosed during trial on Feb. 11. The husband testified that he had used an email tracking software known as Streak, to determine, for example, where messages he sent to his wife were opened.
When trial resumed on Feb. 13, Hyer asked if there were any concerns about the software, and both sides agreed that they would not use email tracking technology.
Then Hyer made a deeper inquiry into the legal implications of using email tracking software.
The technology works by inserting a pixel, a tiny image, into the message, that enables the sender to retrieve various data, including the recipient’s approximate location, when the message is opened.
“It is impractical, if not impossible,” Hyer noted in citing a scholarly article about the issue, “for recipients to proactively protect themselves from web bugs.”
But the tracking software could run afoul of a New York law that outlaws stalking and is meant to protect victims of domestic violence, human trafficking, kidnapping and sexual offenses, as well as patients and employees of reproductive health care services.
The most dangerous time for victims of domestic violence, Hyer noted, is when they leave their abusers and the abusers pursue them to new locations.
While the email tracking technology does not reveal the recipient’s exact address, it can narrow a stalker’s search area.
In the divorce case, there is no issue before the court on whether the tracking software was used illegally, the judge noted. But now that both sides have stipulated that they will not use the technology, anyone who does “shall be subject to review by this court” that may lead to sanctions.
