It seems like everyone is on Facebook today, doesn’t it? Your spouse probably is. Your wife’s high school boyfriend might be. Your husband’s buddies who know what went on at that Vegas bachelor party are. Between the chat function, private messages, and reckless over-sharing status updates, there is vast opportunity to find information that your spouse or opponent might not want you to know. So, if you are involved in a separation, divorce, or custody dispute, can you snoop in the opposing party’s Facebook account?
The information posted on your spouse’s Facebook “wall” that is readily visible to you and his or her other Facebook friends, is fair game. There is no expectation of privacy in these types of posts since they are put on a public forum for everyone to see. If an incriminating post or picture appears, print it out and show it to your lawyer. The printout may or may not be admissible in court, but you and your lawyer will at least have it to consider.
Private Chats and Messages
When it comes to private chats and messages on your spouse’s Facebook account, it is a bit more difficult to know whether you might be violating the law. This is a Title II question and ultimately comes down to authorization. Your ability to legally access the Facebook activity depends on whether, and to what extent, your spouse has authorized you to access his or her Facebook. We’ll address the issue of authorization in more depth in terms of accessing your spouse’s emails, but when it comes to Facebook, if your spouse knows and has given you permission to log on to her Facebook account in the past (and has not since changed the password), then you probably would not be violating the wiretapping statutes by logging in and looking around.
If, however, you simply know your spouse well enough to guess her password or correctly answer her security questions, then your access is unauthorized and illegal. Using a spyware program that tracks chats, messages, or passwords is also illegal. Thus, the safest course is to limit your snooping to the public posts of your spouse or anyone else you suspect of improper behavior. Immediately print out any important information you find, since it could be deleted later. If you are not sure whether you can legally access your spouse’s account, err on the side of caution and don’t look. Talk with your lawyer about Facebook (your account and your spouse’s), and be prepared to answer truthfully questions about access to both accounts.