By David Wilkinson, Esquire
With advances in technology, parties embroiled in divorce litigation will find technology plays a significant role in their matter. Many times, divorcing parties discover technology that they did not even know existed being used against them.
Parties to a divorce and divorce attorneys must familiarize themselves with all aspects of emerging technologies. There is nothing worse than litigating a case in court and observing evidence presented by the opposing side that is detrimental to your case. Technology allows for more and more avenues to gather information and evidence for use in court. By keeping apprised of new technologies and the ways in which those technologies can be introduced as evidence in a divorce or separation case, you will gain a significant advantage.
New websites and smartphone applications causing divorce
The World Wide Web is home to 3.32 billion pages across the globe. There are also millions of smartphone applications. Because creating a website or mobile application is so easy, new sites and applications (apps) are created every day that impact the family core and therefore divorce rates. The content within these websites and apps are cited in divorce proceedings as evidence of the breakdown of the parties’ marital relationship, evidence of income or the activities or whereabouts of a party or child.
Aside from Facebook, discussed below, two specific newer applications have caused havoc among matrimonial relationships. They are Tinder and Ashley Madison.
Tinder is a mobile matchmaking application that uses GPS technology and Facebook to locate nearby potential “matches”, which many users of the application utilize to engage in sexual activities.
Ashley Madison is a website that promotes extramarital affairs. There are 37 million users of this website worldwide.
The mere access to sites and applications like these may be grounds for divorce in some states and countries. For example, a judge in Aix-en-Provence, France, recently ruled that flirting on online dating sites constitutes grounds for divorce, regardless of whether or not the spouse had any “physical contact” with any online suitors.
33 States in the U.S. offer divorce based on “Fault”.
For example, in Massachusetts, the General Laws at Chapter 208, Section 1, provides for the various grounds for divorce based on one party’s fault. One of the enumerated bases is “adultery”, which means that a spouse has a sexual relationship with another person that is not the other spouse during the marriage. Because the actual act of adultery is difficult to prove, circumstantial evidence is sufficient and often used to prove adultery. As a result, simply visiting websites like Tinder and Ashley Madison may be part of the circumstantial evidence used to establish adultery.
Information gathering from social media
Facebook has over 1.3 billion monthly users. Chances are a party will appear on Facebook, either on their own “page”, or on someone else’s page. Reports show that one-third of all divorce petition filings mention the word “Facebook.” Facebook allows for people to easily connect with past relationships, schoolmates and others with ease, and therefore Facebook is often an instigator of extramarital affairs.
Facebook content arises in many divorce proceedings, including these example cases:
In one case, a mother denied that she had gang affiliations in her divorce custody matter. Her Facebook account revealed ten or more pictures of the mother hanging out with certain gang members with clearly visible gang tattoos. The mother also posted a picture of her child on Facebook after she had given the child a temporary tattoo that had possible gang meaning.
In another case, a husband alleged that he had a very low income and that he did not have a girlfriend near the time of the parties’ separation. Husband’s Facebook page told another story. Husband’s girlfriend’s photo albums on her Facebook page showed a chronological history of her relationship with the husband prior to the parties’ separation, including pictures from several lavish vacations.
The question of whether it is legal to access another person’s Facebook page often arises in divorce cases. The answer depends on whether the person attempting to access another person’s Facebook account does so using the other person’s password or through his or her own account. If a person accesses another’s Facebook account without permission, they have committed a crime in every state. They have also committed a federal crime under Section 2701 of the Stored Communications Act, which provides criminal penalties for anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided or… intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished…”
However, anybody is entitled to access another’s Facebook page with permission by “friending” them. There is no reasonable right of privacy to a person that invites the other person to view their information. As a result, divorcing parties and their agents often go through great lengths to gain access to another person’s Facebook page. One way they do this is by creating phony Facebook user accounts to entice a friendship online.
Facebook acknowledged in a recent federal Securities & Exchange Commission (SEC) filing that over 83 million Facebook accounts are duplicate or false accounts. Divorcing parties should beware of any unknown friend requests during their divorce matter.
In one case, an investigator wanted to find the whereabouts of a divorce case defendant in order to serve him with divorce paperwork.
The investigator created a fake account with a picture of an attractive woman to entice a man to “friend” this fake woman on Facebook. The investigator was able to track the man and served him with divorce paperwork after arranging for a meeting between the man and the fake woman.
Twitter can be a useful source of information in a divorce case. Twitter’s purpose is to allow a person to make a short statement to the general public about any given subject. These statements are often used in a court of law. Any statement made by a party can be used against that party in court as a party “admission.” In many cases, attorneys monitor the Twitter account of the opposing party to determine whether the person talks about the divorce case, discusses assets, or provides any other helpful information. Divorcing parties should be careful not to share any information on Twitter.
In many cases, attorneys monitor the Twitter account of the opposing party to determine whether the person talks about the divorce case, discusses assets, or provides any other helpful information.
There are over 225 million LinkedIn users worldwide. Divorcing parties can find pertinent information on LinkedIn including educational history and work history of any person that maintains an account. For example, business associates of a party may post significant information about the finances of the party’s business on his or her LinkedIn account.
LinkedIn information can be used in divorce court. In one case, a divorcing wife stated she had no work experience and therefore could not obtain gainful employment in a spousal support issue. Her LinkedIn profile stated, however, that she had significant work history as a bookkeeper and accountant, something she did not disclose in the divorce case.
Can an attorney serve a subpoena on social media companies?
A divorce attorney may serve a discovery subpoena duces tecum on social media website companies. A subpoena duces tecum is an order to produce documents or other tangible things related to a currently pending case. The subpoena can be served upon third party witnesses. Because Facebook, Twitter and LinkedIn all have their main office locations in California and are registered California corporations, they are all under the court’s jurisdiction in California.
Attorneys handling cases within California have the simplest avenue to issue a subpoena, because they are licensed to practice within the state. Attorneys practicing in other states have to follow the rules of their state and California to domesticate their subpoena in California so it will be validly served. The benefit of serving such a subpoena for records may be minimal, however, because these companies rely on the Stored Communications Act (codified at 18 U.S.C. Chapter 121 §§ 2701-2712) to deny access to much of the relevant content. They will not provide you or your attorney with any account content.
Most attorneys realize that much of the information contained on these social media sites is public information and can be found easily online. One reason divorce attorneys may seek to obtain “authenticated” business records from Facebook, Twitter, LinkedIn and other social media websites is simply to connect a party of a divorce case with the user account. This might be obtainable via subpoena without violation of federal law, because the account content is not being sought. In many cases, the divorce attorney will seek to obtain the originating computer IP address for a social media account that they believe belongs to the opposing party’s computer. Many experienced attorneys, however, realize that there is usually a lesser path of resistance to obtain this information, such as asking the opposing party directly during a deposition or in written discovery.
Notwithstanding, account content from a social media website can be obtained from the social media site if the user consents to the information being released, assuming that the data still exists and has not been erased pursuant to the implemented data retention standards practiced by the website. In those situations, the website will only release content data directly to the user or their attorney, and not the opposing side that issued the subpoena. Interestingly, a party can generally be compelled to sign a consent form to release information and compelled to provide the data to the opposing side. This is accomplished through a motion in the divorce case, where the party seeking the records would ask the court to order the other party to sign the consent and then once the records are received, turn them over.
Cautionary advice relating to social media
Parties going through divorce should assume everything put on social media sites can and will be viewed by anyone, including the opposing party and their team of attorneys and experts.
Divorcing litigants should always follow these 8 simple mantras:
1. Review your privacy and security settings on all social media accounts
2. Change all passwords to social media accounts
3. Never “friend” anyone on Facebook that you do not know
4. Advise your family and friends to beware of anyone trying to “friend” them on Facebook that they do not know
5. Do not “tweet” anything on Twitter
6. Do not send any “Snapchat” photos
7. Make sure to disable your LinkedIn account or review the account listing to ensure accuracy
8. Do a Google search for every variation of your name that you can think of, including a search for images.
Coming soon – Part II – “Information gathering from electronic communications (Email, Text messages and hard drives)”.
David Wilkinson is an attorney and Certified Family Law Specialist (CFLS) licensed to practice law in California and Massachusetts. Mr. Wilkinson, co-founder of Wilkinson & Finkbeiner, handles all facets of family law, from straightforward negotiation and preparation of pleadings to complex litigation. For the past four years, Mr. Wilkinson has served as pro bono supervising attorney for the California Western School of Law and University of California San Diego joint collaborative legal-medical Community Law Project. He recently left California to start the firm’s new office in Boston, Mass.