“The use of social media has exploded over the past decade. Today, researchers estimate that nearly two-thirds of American adults use social networking sites, and new social media platforms are introduced every day. Curious about a friend’s summer vacation? Check his Facebook photo album. Want to share an amazing recipe? Post it to Pinterest. Want to see a movie? Read reviews on Twitter. Looking for a new job? Ask around on LinkedIn. Need a laugh? Watch a YouTube video. Feeling lonely? Join a dating site. Stranded? Request an Uber.
Social media now permeates nearly all areas of our lives‘ and the law. Not surprisingly, divorces are frequently impacted by social media. Thanks to the unprecedented volume of evidence created by its users, a person’s activities, spending habits, locations, conversations and connections are recorded and preserved like never before. From one smartphone, an image can be made available to millions of people in an instant.
Impact on Family Law
While participating in social media is quick, easy and entertaining, it is important to recognize the serious implications such participation could have in a divorce case. A significant piece of evidence could be a simple click, post, chat or Tweet away.
Courts have considered a variety of social media evidence in reaching life-changing decisions in family law cases. For instance, a Michigan court recently terminated a mother’s parental rights based on Facebook, Instagram and Twitter photos showing that she allowed her children to be around their father after his parental rights were terminated for sexual abuse. In a case regarding wrongful removal of a child, a Texas court considered a parent’s location as listed on his LinkedIn profile as a factor in determining the parents’ and the child’s habitual residence. In a Kentucky custody case, a court considered Facebook photos of a mother drinking against the advice of her mental health treatment providers in awarding primary custody to the child’s father. These photos were not even posted by the mother, but “tagged” by her “friends.”
In many states, an alimony obligation can be terminated based on the recipient spouse entering into a meretricious relationship, or living like one is married to someone else. In determining whether a relationship is “meretricious,” an Illinois court has considered the “relationship status” posted by litigants on their social media profiles.
Using Social Media In Divorce Cases
In representing a client going through a divorce, counsel must be educated on the impact that social media could have. If used correctly, social media can be a benefit ‘ not a detriment ‘ to the case. Here are some helpful tips.
Guard the Client’s Social Media Image
In a contentious divorce case, the actions of both spouses are examined and scrutinized. This includes online conduct. The client will likely have Facebook, Instagram, Twitter or LinkedIn accounts, all reflections that can be used by the court to determine one’s earning capacity or parenting abilities.
When a client is divorcing (or even considering it), he or she should be advised to refrain from participating in social media, except in ways he or she would be comfortable explaining to a judge. Should the client continue engaging in social media, he or she should be coached to consider how the case might be affected before posting, connecting and communicating. The client should disable geo-tag settings, which allow others to see the user’s location. Prepare the client to ask friends and family to avoid posting information as well, and make sure that privacy settings prevent private information from being disseminated to strangers.
Most social media users do not understand the varying levels of security available to them. Take the time to explore privacy settings, and ensure that the appropriate precautions are in place to preclude opposing counsel from having direct access to the contents of the client’s profile.
Be respectful and very careful. (And by the way, lawyers are not immune from the dangers of social media. A divorce attorney in Indiana was charged with felony intimidation for sending a threatening message to an opposing party on Facebook.)
Be Aware of Spoliation
It is tricky for both clients and attorneys to balance the risks of spoliation against the risks of social media evidence undermining a legal case. While many people obviously want to present the best version of themselves online, divorcing parties involved in litigation should not permanently delete their accounts or social media activity. Destroying social media evidence, even before litigation begins, can be considered spoliation of evidence, and may subject a party, or his or her counsel, to sanctions.
What adds to the difficulty in knowing how to properly advise clients on this subject is that the laws and rules vary from state to state. In Virginia, an attorney was sanctioned for telling his client to “clean up his Facebook page” in a wrongful death case.
In addition, spoliation of evidence may jeopardize credibility with a judge or jury. A plaintiff in a New Jersey personal injury case permanently deleted his Facebook profile, and the court instructed the jury that it may draw an adverse inference against the plaintiff for failing to preserve his Facebook account.
Contrast those cases with the following ethical opinion from New York.
The New York County Lawyer’s Association (NYCLA) issued Ethics Opinion 745, which addresses how to advise a client on posts on social media sites. The opinion states that attorneys may advise their clients to activate the highest security settings available. An attorney may further review a client’s social media profile and offer advise on how content may be received by adversaries how that content might be used by the opposing side in a case.
The Opinion goes on to state that there is no ethical bar to advising a client to remove damaging material from his or her profile, provided that the material is preserved in cyberspace or on the user’s computer. While this opinion indicates that “removal advice” is not an ethical violation, attorneys need to consider and determine whether doing so in a particular case may violate spoliation laws.
Protect All Devices
A massive amount of private information is stored on electronic devices. Computers, tablets and smartphones are filled with owners’ personal communications. Thus, it is important to protect one’s devices from spyware, software that allows a user to obtain covert information from a computer or smartphone. If infected with spyware, a device may transmit to the installer everything sent, received or said while using it.
Spyware is sometimes impossible to detect. Thus, anyone involved in divorce litigation should not accept a smartphone as a gift during the divorce proceedings, and should never leave the device unattended. If spyware is suspected, buy a new phone (unless, perhaps, the opposing side’s use of spyware can be used as an advantage in the case).
It is also prudent to have the client call his or her cellular provider and confirm that location services are not enabled. Nearly all phones have global positioning systems (GPS). Phone GPSs should be set to E911 only, which, in the event of an emergency, allows the user’s location to be determined if 911 is dialed, but prevents the user’s location from being broadcast in non-emergency situations.
Check out the opposing party. Do a Google search, and look for the opposing party in specific social media platforms. A spouse’s social media usage may produce helpful information for the case. In addition to the standard websites (Facebook, Instagram, Twitter and LinkedIn), check YouTube, Periscope, Vine, Viber, Skype, SnapChat, Wikr, Venmo and dating applications.
Think outside the box. Does the opposing party spouse participate in a fitness application? Does he or she wear an activity tracker? (Data from a woman’s Fitbit device was recently used to contradict her allegations of rape.)
Ask the opposing party what accounts are used. Obtain user names and information on how the accounts are used, and look for the names of connections and a list of recent locations. Click on geo-location tags to see where posts were made.
Find out what the opposing party spouse is publishing to the public. Even if the account is blocked to the public due to secure privacy settings, their connections and profiles of family and friends may contain relevant evidence.
Dig Deeper. If the divorcing spouses share a computer or other device, see what has been placed in the virtual “trash can” and what information is stored in the cloud. If important evidence is suspected but not available, hire a computer forensics investigator to copy the computer’s hard drive.
Don’t Cross the Line
While it makes sense to “do your homework” and search for content published to the public or to which an attorney would have reasonable, legal access, do not cross the line. Ethics opinions prohibit using false or misleading representations to obtain social media evidence.
Do not use deception, theft, spyware or “hacking” to obtain electronic evidence. Not only will this hinder the introduction of these findings into evidence, but civil or criminal liability may also be a risk. At the federal level, individuals’ privacy interests as they relate to electronic communications are protected by the Wiretap Act, 18 U.S.C. ‘ 2510, et. seq., the Stored Communications Act of 1986 (SCA), 18 U.S.C. ‘ 2701 et seq., and the Computer Fraud and Abuse Act (CFAA).
In addition, most states have added protections. For instance, the Georgia Computer Systems Protection Act criminalizes computer theft and computer trespass. Such illegal means are unnecessary. Instead, use the discovery process.
Social media is not a passing trend. Its use and popularity continues to grow. New demographics are stepping onto the social media stage and utilizing it in different ways by shaping the way we spend time, communicate with others and learn information. It is clear that social media evidence will continue to play a role in domestic relations cases. Thus, it is important for attorneys to advise their clients regarding social media evidence. Guard clients’ social media images, be aware of spoliation, protect their devices and investigate. Finally, do not allow the zeal of finding information to turn into an obsession and degenerate into the commission of a felony. No information one might retrieve is worth that result.
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