Social Networking Smackdown: Listen to Raleigh divorce lawyers Lee Rosen and Scott Allen discuss the impact of social media on divorce in this special episode of Divorce Talk Radio
Can Social Media Be Used Against You In Court?: Raleigh divorce attorneys Lee Rosen and Scott Allen answer listener questions about whether content from social networking sites can be submitted as evidence in divorce cases.
Transcript:
Can your Facebook, Twitter, and email communications be used against you in a divorce? Hi, I’m Lee Rosen for the Rosen Law Firm. Thanks for watching. Everybody communicates electronically today.
We’re all looking for the fastest, easiest way to talk to our friends, family members, and coworkers. All day long, I send out messages via text, Twitter, Facebook, and email. But can the things we say be captured and used against us later in court? Most of us don’t worry much about these messages being sent out into the ether.
They seem to disappear. They get read, they get deleted, right? Well, not really. Most of our messages are captured somewhere on somebody’s server.
They might live on that server for just a short while, or they might live there forever. If they continue to exist, then they can be found by an opposing party in a lawsuit. The discovery process through the court system is very powerful, and the courts permit broad access to information.
In our practice area, family law, it’s routine for us to hire forensic computer experts to assist with contested cases. Using these experts and gathering this information has become standard practice. The information collected may be used to prove something, or it may be used for cross-examination in a trial.
Imagine you just testified that you were really bothered by the conduct of your spouse. You said you were embarrassed, upset, humiliated by something that he or she did. Then the opposing counsel starts to ask you about your Twitter messages, and about the same time you were tweeting about being happy, having fun, and being in a great mood.
Suddenly, you look like a liar. Not good for your case. It’s one thing to say something in public, like on Twitter, but aren’t there laws to protect your communications, especially if you thought they were private? Yes, the Federal Electronic Communications Privacy Act prohibits the interception of any wire, oral, or electronic communication, and the unauthorized access of these messages in storage.
This law provides for serious financial penalties, prohibitions on using evidence in court, and even a prison term of up to five years. There might also be state laws that protect you. But you are only protected if you had a reasonable expectation that your communication would be and would remain private.
The courts look at each case to see if the facts justify a reasonable expectation of privacy. It’s pretty clear, for instance, that if we’re talking on our cell phone in a crowded room, that we knew others would overhear. In that situation, we don’t have a reasonable expectation of privacy.
It’s also pretty clear that a public tweet on Twitter does not come with any expectation of privacy. But what about a status update on Facebook? After all, you have to be a member of Facebook to get in. You can only see my status updates if you’re my friend.
At least, that’s the way I’ve set mine up. You might want to check yours. But do I have a reasonable expectation of privacy on Facebook? Probably not.
What about a Facebook wall posting? What about a Facebook message or email? Remember, the court is required to analyze each of these situations on a case-by-case basis. The court will also consider where the message was sent from. Was it sent from my computer or from a shared computer? Did others have access to my messages in my sent mail folder? Lots of facts to consider in every case, and the court will look at every fact case-by-case and determine if you had a reasonable expectation of privacy.
If there is no expectation of privacy, then you can expect the information to be used in court. So what do you do? Think before you hit the send button. Assume that most things you send will not be private.
Be careful about everything you send out over the Internet. It’s better to be safe than sorry. For more information about electronic communications, visit our site, Rosen.com. Thanks for watching.
I’m Lee Rosen for the Rosen Law Firm.
