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The Dirty Not-So-Secret Ashley Madison Affair

“Life is short. Have an affair.” You might also want to have a good lawyer. And if you are a lawyer, you might want to “drop, cover, and hold on.” Ken Metcalf, Chief Technology Officer for a prominent security provider, recently compared the Ashley Madison (“AM”) security breach to an earthquake and its aftershocks. It seems his analogy has proven to be quite accurate as the layers of impact continue to surface.

The creator of Ashley Madison, the “most recognized and reputable website for finding an affair and cheating partners,” is lawyer Noel Biderman. He began his career as a sports attorney, working as an agent for professional athletes. According to Biderman, he was spending more of his time helping his clients juggle their wives and mistresses, and less on practicing law. He once commented, “One player I represented called and said, ‘My wife wants to come visit me in Milan!’ I said, ‘Okay, what’s wrong with that?’ The guy said, ‘My Italian wife won’t like it.’”

Biderman claimed that his having to deal with the numerous affairs of his clients was one of the major initiatives for the creation of Ashley Madison. As some lawyers do, Biderman branched out into another career path. He launched the AM website in 2001, sold it to Avid Life Media in 2007 and became the CEO. The site’s basic membership fee is $49. Its most expensive membership is the “Affair Guarantee Package” which costs $249, but offers a refund if the user does not find someone within three months. They also charge $19 if a user wants to have personal data deleted. With over 37 million users since its inception, it is not surprising that revenues last year alone were $115 million.

On July 15th of this year, the site was hacked by a group identifying itself as “The Impact Team.” The hackers claimed to have stolen all of AM’s customer data, including names, addresses, emails, search histories, credit card information/purchases, as well as their sexual activities and fantasies. The hackers demanded that AM be permanently closed or they would post all the data online. Their demand was driven by the site’s policy of not deleting users’ personal information following a request and payment to do so. With no compliance from AM, the hackers began releasing data on August 18th, and thus the earthquake occurred.

The aftershocks began almost immediately. From law suits, extortion attempts, divorce proceedings, celebrity shaming, public outings, and even suicide, the repercussions seem endless. These aftereffects pose enormous personal, social, and professional repercussions for all walks of life and professional careers. However, the potential impact on lawyers, whether directly or indirectly, seems particularly substantial. Because lawyers supposedly have the highest rate of sex addiction of any profession, the chances of some lawyers being “outed” by the data are great. This would likely have the obvious personal repercussions to marriages, relationships, families, and reputations within the community. But it can likely bleed into professional lives as well, resulting in anything from public shaming, embarrassment to a law firm or company, or to a more severe discovery of sexual relations with clients.

On a strictly professional level, some lawyers will become even busier than they are now, because this release of data has created a storm of repercussions in the legal arena. The initial aftershock, which literally happened within moments after the hackers posted the first wave of data, came when law firms everywhere began posting announcements that they were starting investigations for class action law suits. At least four lawsuits have now been filed in the US, each battling for class-action status. Many legal experts, however, believe that the character issue hanging over the people involved will limit the probability of a big damage award from a jury. Despite the fact these US law firms will have to get in line behind an already filed $576 million class-action lawsuit from law firms in Canada, the class-action lawyers are still lining up. There are also potential claims for “invasion of privacy” and “publication of private facts” in some but not all states.

The next big aftershock came less than a week later from digital extortionists using the list to take advantage of people exposed by the data hack. Extortionists sent emails to AM users that said, “Unfortunately, your data was leaked in the recent hacking of Ashley Madison and I now have your information.” They gave the person 7 days to pay roughly $225 or they would release the information to the person’s significant other. Because the list was initially on the Dark Web, where few people could access the information, and because it was a minimal amount of money, many people just paid it. Authorities believe they can identify these cybercriminals, so enter the need for criminal defense attorneys and prosecutors.

Millions of AM customers used their work email domains to register on the site. From religious institutions, to the military, to the highest offices of the white house, congress and homeland security, to the private sector, to state agencies and local city and county agencies and governments across NC – no sector has been left unscathed. An entire article could be written about the employment ramifications for current employers as well as future employability of those on the list. Add to that a layer of legal complexity resulting from the fact that AM did not require users to verify their email addresses. This means there is no way to conclusively prove that the person who set up the AM account under the email address given is the actual person assigned to that email – or whether an account was set up out of humor or spite. All of this will keep the labor and employment attorneys hopping.

However, given the traditional focus of the typical LAP column, we now turn to those aftershocks related to mental health impacts and the ramifications for NC attorneys.

The most immediate and apparent impact on North Carolina lawyers will be for those practicing family law, in terms of divorce, custody, or other relationship-oriented law suits. As one reporter stated, “Divorce lawyers are celebrating like it’s Christmas!” It took less than a week for the first divorce filing related to the AM incident. Virginia attorney Van Smith says he gets as many as 10 calls a day from people seeking a divorce as a result of the AM information release. Some law firms and solo practitioners are posting specific information related to the AM data release on their websites and in advertising material in order to attract clients.

While more clients might be good for business, these clients won’t necessarily be good for the lawyer who is dealing with them. Family law practitioners already deal with some of the most difficult and emotionally challenging clients. Research has shown that exposure to these clients can create compassion fatigue in lawyers themselves. But this AM scandal raises the stakes in ways not immediately obvious. AM clients are likely to have even more powerful emotions at play, partly due to the “public” aspect of the scandal and partly due to unique aspects associated with “virtual infidelity.” These undercurrents create a new and different emotional dynamic from the “traditional affair” for both parties concerned.

Historically an affair has been considered a sexual relationship with someone other than your spouse or committed partner. Many of the AM users only had “virtual sex,” or shared sexual fantasies. For some it was an emotional infidelity, which can be even more damaging to a relationship than a physical infidelity. Traditional affairs offer numerous ways to be detected, while online infidelity can be hidden very easily and for a long period of time. Even when confronted with behavioral evidence, the unfaithful partner can adamantly deny any wrongdoing because there is no definitive physical evidence to the contrary. This thinking is akin to someone refusing a breathalyzer when charged with a DWI and works about as well.

For both partners involved in the AM scandal, the public aspect will increase the shame, embarrassment and humiliation already felt. There is no putting this genie back in the bottle. So the extent and range of friends, family, co-workers, employers, or almost anyone knowing about it is limitless. This means the emotional turmoil for the couple will feel limitless as well, making it extremely difficult to repair the relationship or to find closure if ending it. Public knowledge also creates a public opinion, which translates into feelings of being judged. Because opinions vary, it’s a no-win situation whether the person leaves or stays in the relationship. The seemingly endless amount of people who know of the cheating can create a continued sense of violation, stripping away even more intimacy from the couple while also increasing feelings of vulnerability.

In this kind of virtual infidelity, secrecy and deception happen on a much deeper level than with a traditional affair. Moreover, the impact is deeper and further reaching for the spouse or partner of an AM user. A traditional affair typically begins at work, while online encounters typically happen at home – right under the nose of the spouse or partner. There may also be a sense of betrayal financially from the money spent, or the nature of how it was spent. Users of AM and other online infidelity sites frequently establish credit cards, bank accounts, and cell phone accounts that are separate and unknown to their significant others. Due to the heightened ability to hide the behavior, the infidelity will seemingly come out of the blue in a marriage or relationship the spouse or partner thought was good. All of this creates a level of betrayal that goes to the spouse or partner’s very core, leaving them feeling foolish and naïve, and questioning their ability to judge reality. They struggle to define their feelings for the AM user, because they no longer trust that they actually know who that person really is.

These dynamics translate into stronger emotions, more demands, and unrealistic expectations in an area of law that already deals heavily in that trade. Clients will not be driven by the realities of the law, but by their own feelings of hurt and betrayal. They will not be looking for a fair settlement; they will be looking for emotional revenge and payback for damages to their own psyche, all the while knowing cannot possibly be righted or fairly compensated. And they are looking to their lawyer to get it for them.

As if family law wasn’t stressful enough, these cases will be exceptionally difficult to manage. Family law attorneys will need to tighten their boundaries and brush up on their counseling skills. The first step to managing these situations is for the lawyer to meticulously clarify expectations, both of their role and that of the client. Due to the intense emotionality these clients are experiencing, their ability to retain information and think logically, or at times even rationally, has been compromised. Therefore expectations should be provided to clients orally and in writing. Specific attention should be given to expectations around communications. Clients need to be instructed as to what is an acceptable or preferred method of communication, response time, and working hours. Despite what actual hours the lawyer might be working, they should not respond to these clients outside of standard work days and times. While these clients are experiencing feelings of hurt, rejection, betrayal, and powerlessness, what they will display is a great amount of anger. They use anger as a way to keep the more painful feelings at bay, and as an immediate emotional release from those underlying and overwhelming feelings. This kind of anger may be stronger than they have ever experienced, and it may be difficult for them to control. Inevitably, the lawyer will be the recipient of this anger and needs to remember that while it is directed at them, it’s not about them. The intensity and range of emotions will result in clients with mood swings that can change in an instant, and thus cause them to change their minds in an instant…And then back again… numerous times. The lawyer should anticipate these constant changes and either role with it or draw a firm line in the sand. Validating the client’s feelings, having an abundance of patience, setting clear and precise expectations and boundaries, and not allowing themselves to become reactive with the client will be essential “survival skills” for any family law lawyer.

Ironically, maybe surprisingly, being on the AM list doesn’t necessarily constitute “philandering,” or perhaps anything other than fantasizing. According to extensive research conducted by Annalee Newitz, there were only about 12,000 real women participating in AM. The other female profiles were created by AM for “amusement purposes only.” So as Newitz states, “Ashley Madison is a site where tens of millions of men write mail, chat, and spend money for women who aren’t there. When you look at the evidence, it’s hard to deny that the overwhelming majority of men using Ashley Madison weren’t having affairs. They were paying for a fantasy.”

Fantasy, however, may actually be the biggest bang for the buck and is certainly a huge factor in online affairs. It provides the freedom to fantasize without the intrusion of reality. An AM user enters a world where sexual fantasy variety and possibilities are endless without the burden of responsibility toward another, burden of consequences for the secret behavior, or risk of rejection. To further enhance the fantasy, the person “dissociates,” meaning they move away from their feelings. Through this emotional disconnection, the fantasy can feel intensely real, while it is actually further distorting the AM user’s perception and distancing them from reality.

This emotional and mental escape, combined with the ability to manipulate one’s identity, is a great “disinhibitor.” This disinhibited landscape increases the pace of self-disclosure and sexual expression, thus creating an accelerated sense of intimacy. This results in “relationships” that move faster and are much more intense on one hand, while simultaneously allowing them to remain detached from the on-line “person” with whom they are interacting. Separated from the real world, they create justifications and rationalizations needed to convince themselves and others that their behavior is both victimless and harmless. Escaping into the fantasy creates an uncanny ability to compartmentalize, where they come to view their online identity and activities displayed online as a total separate entity. Of course, this virtual scenario is the exact opposite of true intimacy where partners are emotionally present with each other’s feelings and experiences.

Understanding these emotional dynamics and repercussions can help lawyers better handle their clients and walk away with less emotional collateral damage to themselves in the process of navigating claims stemming from the AM scandal. Even if you are in an area of law that isn’t impacted directly, the public’s interpretation of this being a feeding frenzy for lawyers is giving all lawyers’ image a huge beating. The press is adding fuel to the fire by being quick to identify those on the list who are working in the legal field. Unfortunately there are many. It seems as though the majority of people outed were either celebrities or lawyers. Somehow it seems to add to the popularity of the celebrities, but the opposite is true for lawyers.

The true human cost in terms of extortion, divorces, shattered families, job consequences, witch hunts, violent retributions, suicides, and legal proceedings of the AM earthquake will not be known for years to come. What seemed to begin as an issue of infidelity has quickly become a matter of security. Not just in the traditional sense, but in a far reaching emotional sense as well.

– By Cathy Killian, Clinical Director, LAP


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