ExH wants DD phone back with all the information including messages, emails and WhatsApp access. Can he ask for this?

[hereagain99]

I need help with the legal side of who owns the information that a mobile phone contains. ExH refused to pick DD up from her holiday with us. He has email me saying that DD lives with me from now on. This is a different subject but I think it is important for a bit of background.

DD has a phone contract that her dad pays, tonight he has called and said that as DD isn't using her phone anymore, contract is on his name and he pays for it, he expects the phone to go back to him with all the data, as he has called it, intact so he can have access to her email, messages, contact numbers and WhatsApp messages. He also expects access to any social media that she has.

My understanding is that all the information he is requesting is personal and that he should not have access to it. His argument is that as he pays for the phone contract and it is on his name, becayse DD is a minor, everything belongs to him and he expects me to send him the phone with access to everything.

Is this correct? Any advice much appreciated. Thank you.

Legally he cannot force you to package up the phone and pay postage.

You can choose to not comply. If he wants the phone back then he needs to ask his daughter to give it to him.

So whatever the legals of it, unless you CHOOSE to pack it and send it, he has no way of getting the phone if he is distant and doesn't have physical access to it.

It would have fallen into the toilet by accident and then unfortunately have been stored in a wet towel for a week after though - sadly.

Don’t wipe the phone and don’t give it to him. Report to SS that he wants the phone.

And for the love of the wee man people it is not a GDPR breach. GDPR does not apply in a household context (which a personal mobile phone would be). There is no breach of data protection laws here.

Keep the phone. Don’t return. Do nothing for now.

Have you looked at the phone?
Consider the safeguarding issues- have you discussed with school/sw? What’s their advice?

Do nothing. Ignore him. Put the phone in a safe place for now. Give Dd a new phone.

There's no hurry to respond , if at all,but in the mean time he may try to get it cancelled, so I'd get it copied by a professional pronto. & then check all stored cloud, passwords, emails are then deleted
Ask the police/safeguarding folks if they want/need it.
& eventually tell him that 1) the safeguarders have it, & he will get it back in good time
& 2) you backed up the info anyway

I bet she was so shocked when she heard that, she probably dropped the phone didn't she. Shame she was running the bath at the time and it is now full of water and bathbomb. Still he can have the phone.

I'd get her to change all her passwords before she gives it to him.

@dwengo

Hi, from a legal point of view, he has no right to access personal data. The only person who has rights to it is the Data Controller

That would be either the DD or depending on the age, her guardian, which based on your first paragraph, would be you.

So legally speaking I would not worry about his demands, just politely decline.

All data stored on the phone belongs to DD or guardian.

If he wants it back, I would recommend factory resetting the phone and clearing the sim card of any data.

Yes, this. In short, paying for the device doesn't necessarily give him the right to access the data on it, in this case.

So - before you do anything at all, remember that. You will not put yourself in the wrong in ANY way by not complying with this request at all, certainly not if you refer it up the chain to police/SS before you make any decisions.

So firstly don't comply. Don't listen to a word he says without taking advice.

Secondly, don't wipe the phone, even if you copy the data elsewhere. It sounds as if there is a good chance that there is material on that phone which he would not want you to access - and you copying over all the data you can see (messages, photos) won't necessarily reveal that.

Has he put spyware on it?
Is it logged in to anything dodgy?
Does it link to data of his that he would not want others seeing?

I would: first copy everything that is valuable to your DD and is her own personal info to another phone - so she has her contacts, photos, messages.
Then I would hand the phone over to police and tell them what has gone on and take advice - will they go through the phone properly and investigate it. Also speak to SS.

Then tell him DD's phone is unfortunately now with the authorities who are looking through it so sadly you won't be able to help him, and watch him a. shit himself and b. realise that if he threatens, you'll simply turn it over to police/SS.

Good luck with protecting your DD. It sounds a complex situation and as if you should devote all efforts into making sure she never has to see him again.

I wouldn't do anything unless and until his solicitor contacts you with the same request telling you why the information is required and furnishing you with the legal basis upon which the request is made together with the appropriate legal authorities which support such request.

@pansypotter123

I wouldn't do anything unless and until his solicitor contacts you with the same request telling you why the information is required and furnishing you with the legal basis upon which the request is made together with the appropriate legal authorities which support such request.

This And ask any relevant agencies who work with you and your daughter for advice on the matter.

It’s her personal data, even as a minor. He has no entitlement to it whatsoever

I think I would start by ringing the phone company, explaining the situation, and asking for their advice on whether he would be able to get access to the data without having the phone. Or if you re-set the phone. Then you have a starting point. As others have said, before wiping it then consult Social Services or the police for advice on whether they should have the phone or not. Take it step by step, maybe don't hang about because at this point you don't know if he can get access without the phone - some posters think he could.

Alarm bells are ringing in my head.

OP do not do anything until you have received proper legal advice.

I first read this post late last night and was horrified, but I was too tired to reply properly. His contract is with the mobile phone company for (presumably) the provision of the phone and the data allowance. He chose (again, presumably) to give the phone to your daughter. Whilst technically there is an argument he could take/ask for the phone back he does not “own” what she has used it for. If he thinks he does, then as I said in my previous post, let him prove that through the appropriate legal channels.

@Theworldisquiethere

Just clear all the data, what could he actually do about it?

100% this. He cannot enforce his request.

Some bizarre responses here. If there's a possible legal issue involved then OP wiping the phone data is not going to look good. The only person who has something to benefit from wiping the data is someone who is incriminate by it.

My advice is keep the phone safely locked away until such time as you are sure it is no longer potentially helpful to any enquiry.
If ex requests it back he can pursue this through legal channels.

I agree with pp, speak to dd's social worker about it and follow their advice.

What would be the consequences of ignoring him and doing nothing? What is he going to do, take you to court over it?

I would wait and see. If at any point it is mentioned in legal documents or comes up in court, you can think about complying with his request then.

He is not the boss of you, or of dd, you don't have to do what he says.

@oviraptor21

Some bizarre responses here. If there's a possible legal issue involved then OP wiping the phone data is not going to look good. The only person who has something to benefit from wiping the data is someone who is incriminate by it.

My advice is keep the phone safely locked away until such time as you are sure it is no longer potentially helpful to any enquiry.
If ex requests it back he can pursue this through legal channels.

Exactly.

OP, you ousted in Legal because you needed specific legal advice.

The vast majority of responses here are merely outraged armchair warrior uninformed opinion.

Please, please ask your solicitor.

I would suspect that he thinks there is incriminating evidence on the phone - ie incriminating him. If your DD is over 16 it may also be different but I am in the keep it and keep it intact camp as others said he isn't entitled to it even though he pays the contract, and he certainly has no right to the data especially if she is not living with him or his day to day responsibility.

If he has been a nightmare all along which it sounds to me like he has I would be going to the police and explaining the situation and the havey cavey safeguarding issue at his and letting them pull it apart for you. You can legitimately say that currently its with the police

100% wipe the phone. He pays for the phone and the minutes texts data he doesn’t pay for the information the phone holds and isn’t entitled to it. Obviously if DD was younger and you needed to check her phone to make sure she was ok etc that’s different but on the whole the information on it is hers. X

Urgh, my ex tried something similar but with my phone which was paid out of his business account. He had agreed that I could continue to use it for a few months while I got round to porting the number across to a new contract. Changed his mind as soon as I moved out and expected it back with all the data intact. I restored it to factory settings and handed it back and got a new phone with a different number making it harder for him to contact me with his constant crazy demands. Your ex does not own your DDs personal data even if the device is his. Just ignore his threats and give the phone back wiped clean. I would also drop him an email confirming that the phone has been returned so that he can't accuse you of theft in the future (as my ex did).

It's not unlikely that these kinds of demands will happen as a way for your ex to keep the control in place - feel reassured that 90% or more of it is likely to be hot air and without any legal basis and should just be ignored.

Or transfer the data to another phone and then wipe it. In case there’s something on it he’s worried about people finding etc

Legally it's his handset. Not your daughter's. But he has no legal right to her data that is stored on that phone.

Your obligation is just to make sure he gets his phone back so he can't just claim theft, but nothing on the phone is his.

This is a power play.

I would go through every message, photo and anything really to find what he doesn't want you to see.
WhatsApp you have to delete everything and sign out before you wipe it. Even better before you wipe the phone close the account.
Change all passwords on a different device before signing out and deleting.
Delete browser history.
Change password on google/iCloud etc on a different device before signing out.
Change every single password reminder.
Change the second contact emial/phone to something you own for alerts and reminders.
Don't forget about the save passwords but and delete all of those.

If she wanted him on her sm she would have sent him a friend request. With her to through her sm and look for contacts that might be fake.

Or just tell him it's broke so you got her a new one. If he doesn't believe you there's loads of broken phones on ebay.

The only things he can get from the provider is numbers from texts and calls. These can easily be accessed by signing into the account.

I wouldn't do anything at all - just ignore him, what's he gonna do? Silly little man!

Don't wipe the phone of there is anything on there that could be used as evidence against him.

I'm so glad that she's getting away from this man - and well done you for being so practical and pragmatic about it all.