Family law practice in the electronic age: what every client should know

Issue June 2014 By Katherine McCarthy

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.