There is no question that communication has become more
convenient and accessible due to advancements in technology.
Computers, mobile devices and other types of electronics play a
significant role in much of our daily lives. But the everyday use
of such modern technology has resulted in many complex and novel
legal issues. This article will highlight the particular issues the
use of electronics presents in family law cases, and what every
client should know at the outset of litigation.
Electronic evidence
Technology has changed the face of traditional evidence.
Common types of electronic evidence attorneys routinely come across
in their practice include information obtained from social media
sites (Facebook, Twitter, MySpace, LinkedIn, YouTube), Global
Positioning System (GPS) tracking, text messaging, email, blogging,
files stored on a computer and websites.
These types of electronic evidence are increasingly being
introduced into family law cases. For example, in the context of a
highly contested divorce case, a family law attorney is aware that
a wealth of relevant information may be gleaned from the opposing
party's public Facebook or other social media page. Too often,
clients do not realize the implications of posting comments and
pictures on social media sites. A client could easily damage his or
her credibility before the court by posting questionable content on
social media.
In a divorce case, custody is often an issue that is front and
center. If, for example, a client appears in pictures or making
comments on Facebook which suggests over indulgence in alcohol or
other substances during his or her parenting time with the parties'
child, this could negatively impact the client's request for
custody. More generally, it is important to recognize that anything
published on a social networking site can resurface in litigation,
and can have a negative impact on the parent/spouse's credibility
before the court.
Deleting a particular comment, message or picture from a social
media site may not be enough. It is, perhaps, not surprising that
technology exists that can resurrect information a person
mistakenly believed had been successfully deleted from a website or
computer's hard drive. Similarly, changing one's Facebook security
settings to private is not enough, because the user's information
could show up on the Facebook pages of those on their "Friend" list
who have not made their pages private. Social media account records
can also be subpoenaed for use in a court proceeding.
Additionally, clients should be aware that posting derogatory or
negative comments about their spouse on a social media site could
have legal consequences. Such comments could result in an
unnecessary defamation lawsuit, or, depending on the severity of
the circumstances, a lawsuit for harassment or infliction of
emotional distress.
The point here is that individuals involved in family law
disputes must be extremely careful before publishing anything on
social media. As a best practice, clients should refrain altogether
from publishing any information about their pending case, about
their spouse or anything else which could negatively affect the
client's credibility before the court. If a client has already
posted such information, they should take the material down
immediately so as to mitigate any potential repercussions which may
follow.
Privacy concerns
Another increasingly common issue in family law cases
concerns one spouse surreptitiously monitoring or spying on the
other spouse. Emotions can run extremely high during a divorce, and
some clients have an inclination to "spy" on their spouse whom they
suspect is behaving poorly, perhaps believing that discovered
information may give the spying spouse an upper hand in a divorce.
However, these clients fail to recognize that their actions are
often times in violation of the law and could make them susceptible
to serious ramifications. It is true that privacy and wiretapping
laws tend to vary from situation to situation. Even so, all too
often clients incorrectly assume that because they are married, it
is okay to log on to their spouse's social media and email accounts
or look at their spouse's cell phone content. It is important that
clients understand what types of actions are potentially
illegal.
In the electronic age, spying has become much more
sophisticated. An increasing number of people are utilizing spyware
technology to monitor their spouse's online activity. Spyware is
software which may be uploaded onto a computer, enabling a user to
monitor and track the web activity of a specific person. Spyware
software is readily available at retail stores and online for a
modest cost. Once uploaded, the software is often difficult for the
novice computer user to detect.
What many clients do not know is that Massachusetts has adopted
several protective privacy and wiretap laws which carry both civil
and criminal penalties for violations. Uploading spyware software
to a spouse's computer, even if the client shares the computer with
his or her spouse and/or purchased the computer, could run afoul of
these laws. It is imperative that clients realize that, just
because he or she can purchase spyware online or at a retail store,
that does not necessarily mean that the software may be legally
used to monitor a spouse's web or cell phone activity. Illegally
obtained evidence not only raises ethical considerations for the
spying spouse's attorney, but such evidence will likely be kept out
of a court proceeding by a judge, rendering it useless.
Clients also too often have the misconceived notion that it is
permissible to secretly hack into their spouse's email, cell phone
and social media accounts, and are surprised to hear that what they
are doing could be illegal. A typical scenario a family law
attorney may encounter involves a client who feels strongly that
because he or she is still married, he or she is free to monitor
the other spouse's communications. Similarly, because two spouses
share a computer, one spouse may feel justified in monitoring the
other spouse's Internet activity.
However, it is illegal under both Massachusetts and federal law
to gain unauthorized access to a computer system. Clients should be
aware that logging onto their spouse's online accounts and viewing
his or her emails or messages without permission could subject the
spying spouse to criminal penalties. This is especially true if the
spied-on spouse maintains exclusive control over the device or the
account is password protected. Further, as a general rule, secretly
videotaping or voice recording another person, even a household
member, is illegal.
The current state of the law regarding unauthorized access to a
spouse's cell phone is less clear. Courts have recognized a
diminished expectation of privacy between spouses, which means that
what may be deemed an offensive invasion of privacy between
non-married persons may not be recognized as such between spouses.
But it is important to caution clients that the trend of the
Massachusetts courts has been to protect the privacy of
individuals, including individuals within a marriage. Hence, just
because a client guesses or secretly learns the password to the
other spouse's cell phone does not mean that it is permissible to
view its contents. Additionally, cell phones, particularly smart
phones, are similar to computer systems. Courts could interpret the
unauthorized access of a cell phone as falling within the purview
of the law prohibiting the unauthorized access to a computer
system, resulting in possible criminal liability.
Very often information obtained by a spying spouse involves
another spouse's extramarital affair. However, proof of adultery in
and of itself does not hold much weight in a contemporary divorce
action in Massachusetts. Hence, the risks simply outweigh the
benefits in most cases.
What every client should know
Family law cases are emotionally-charged proceedings. Very
rational clients may display seemingly irrational behavior in the
midst of a highly contested divorce. That is why it is so important
for every divorce client to have clear guidance from the outset on
his or her use of electronics. In sum, information about a pending
divorce should not appear on a client's social media accounts.
Clients should also avoid posting anything which may be harmful to
their case. And no matter how tempting it may be to secretly
monitor a spouse's email and social media accounts and cell phone
contents, clients should completely refrain from doing so, as it
could expose them to criminal or civil penalties. Family law
attorneys should have an understanding of the possible legal
penalties so that they may advise their clients accordingly.
Although there is no guarantee that a client will heed an
attorney's warning about the use of electronics during the pendency
of a family court proceeding, it is a warning worth making in light
of the frequency with which these issues crop up in today's
electronic age.