Tag Archives: Facebook

Be Careful About What You Remove From Social Media, Too

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Social Media Perils

There is a seemingly endless stream of problems that can arise from social media and technology when it comes to divorce and family law.  If you have spoken with a family lawyer lately, you likely heard a warning to be very careful about what you put on the internet.  That is an important rule of thumb always, but especially if you are involved in a divorce or custody case.  It is also important to be careful about how you search for information about the activities of a spouse or others.

This is becoming such an important topic that a few hundred North Carolina family lawyers recently met in Greensboro specifically to learn about the criminal and civil liabilities that can arise for ourselves and our clients from various digital activities.  The program addressed a number of the topics, some of which I’ve addressed in earlier blog posts, but one important additional topic is “spoliation.”  Spoliation of evidence is the legal term for when someone deletes or destroys evidence that is potentially relevant in a case.

If a party in a divorce or other family law matter intentionally deletes social media posts, for example, because they might be damaging to the case, that person might be guilty of spoliation.  The party, and his or her lawyer if the lawyer advised it, can be sanctioned or otherwise in trouble with the court.  At the beginning of a case, a lawyer will often send a “spoliation letter” to the opponent or anyone else who has relevant evidence, warning them to preserve the evidence that must be turned over.  This is another reason to be very cautious about what you share online — you may not be able to delete it in the future without causing significant problems.

So, if you are concerned about things you may have posted online in the past, be very careful about “cleaning up” your Facebook page or deleting old Tweets and emails.  You may cause yourself bigger problems if you get caught destroying evidence.  Think twice before you post anything online, and if you are in the middle of a case and are worried about your social media presence, talk to your lawyer about your concerns.

Facebook Snooping

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Snooping

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?

Public Posts

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.

Spying on Your Spouse

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It shows up in both movies and real life all the time: a stray text message, Facebook chat, or email is seen by the recipient’s husband or wife. A secret is exposed that blows up a marriage or relationship. Whether you have a solid reason to suspect your spouse is cheating or are just feeling suspicious or insecure, it seems that technology has made it easier than ever to check up on your spouse’s activities. With all of the resources available – nanny cams, GPS tracking devices, spyware, voice recorders, etc – it is sometimes difficult for both lawyers and clients to know what kinds of spying are admissible in court, and more importantly, which ones are legal for you to use. If you are determined to look for proof of infidelity or other bad behavior by your spouse, you must be careful about the methods you use – some forms of snooping and eavesdropping could expose you to criminal charges. There are both federal and state laws that limit the ways you can check up on a cheating spouse.

Federal Law

The Electronic Communications Privacy Act (ECPA) of 1986 extended certain wiretapping laws to cover electronic data that is transmitted by computers. It makes it illegal to intercept or obtain unauthorized access to certain types of information. Two subsections of this law are important in the context we’re discussing. Title I applies to the interception of wire, oral, or electronic communication. Title II applies to the unauthorized access to electronic communications that are already held in electronic storage.

You might reasonably think that federal wiretapping statutes are aimed at controlling how the government can investigate terrorism or racketeering. That’s true, but they can also apply to a private citizen trying to catch a cheating spouse. Title I is implicated, for example, if you use a voice recorder to tape a phone call or some form of spyware to intercept your spouse’s emails. Title II is implicated if you “break in” to your spouse’s email or Facebook account.

NC Law

North Carolina has an Electronic Surveillance Act that provides much of the same protection as Title I – it prohibits interception of wire, oral, or electronic communications. We also have laws that are similar to Title II and prevent unauthorized access to another person’s computer, system, program, or network.

State law also provides several privacy-related tort claims that your spouse could possibly bring against you if you access his or her communications without permission. Intrusion upon seclusion is one claim; others could potentially include trespass and intentional or negligent infliction of emotional distress.

In the next few blog posts, I’ll discuss how these laws may apply to specific methods of spying on your spouse. In the meantime, the most important takeaway is to know that certain types of snooping are illegal and some might expose you to lawsuits. Before you do any questionable snooping, research what the law says and talk to your lawyer.