Phillips & Ingrum

Social Media, Electronic Information and Your Divorce

By Grayson Cannon

Phillips-Ingrum-Headshots-15_finalMost people nowadays have some sort of presence on social media. Facebook, Instagram and Twitter accounts are common for people of all ages, all occupations and all walks of life. Even my 81 year-old mom posts on Facebook. What many posters forget, however, is that these postings become a sort of permanent record, readily accessible to be used against them in court. We’ve all seen examples of thoughtless criminals posting a YouTube video of their wrongdoing, only to have the video used against them in their criminal prosecution. Sometimes, even information that is posted in one place may turn up in another, as Facebook users are linked to others and if one is tagged in a post, then friends of friends you don’t even know may be able to see the post or the pictures contained in it. Likewise, YouTube video can be reposted multiple times, all over the world.

All too many times, Facebook or some other social media account has been the downfall of at least one member of a divorcing couple, revealing an affair or other marital misconduct to the entire world. Pictures of a spouse with the other person, or mention of their relationship on Facebook, can be devastating evidence in a divorce case. Sometimes the posts may concern other habits detrimental to the marital relationship, such as gambling or compulsive shopping.

But, while it sometimes seems like these postings are very public and are like a billboard on the highway, what if you do not have access to your spouse’s social media accounts? What, if anything, can a spouse do to collect Facebook or other social media posts or access the account of a spouse they believe has cheated or for whom there may be social media evidence of marital wrongdoing? If the spouse seeking the information or someone they know is Facebook friends or is linked to the wrongdoing spouse on other social media, it may be as simple as printing off evidence of the misconduct from public postings to which you have access as a “friend.” Keep in mind that if another person is the one accessing the information because of their friend status, it may be necessary to have that person come to court to explain how the information was obtained, in order for the information to be admissible. But more steps may be needed if there is no such access.

During the divorce, a spouse can be asked in discovery to furnish social media account user names and passwords. This is a legitimate request that may be difficult to block unless the accounts are employment related or protected by an employment agreement or other contract with a client. Your spouse’s attorney can also ask you to sign an authorization allowing access to your social media profiles, and Facebook does have a feature that allows a download of each and every activity on the Facebook account with this type of authorization.

Emails may be somewhat more difficult to obtain, but not impossible. A federal law known as ECPA (the Electronic Communications Privacy Act) and some state laws that follow it, prohibits the interception of electronic communications such as emails, unless one or more of the parties to the communication consents. So, it may not be legal to simply intercept and print emails meant for a wrongdoing spouse, even when you know the spouse’s password or have access to a computer owned by that spouse. Tennessee has a version of an electronic privacy statute that prohibits intercepting electronic communications unless the person is a party to the communication, or one of the parties to the communication has given permission. Tennessee has a case from 1991 that holds that an email is not privileged if it was voluntarily sent or received on a computer to which the other spouse has access, such as a family or jointly owned computer. However, in some other states which have addressed the issue, just knowing your spouse’s password because they gave it to you for some other purpose, may not indicate consent to access their emails or other accounts for ALL purposes.

This is true in most other states as well – if the computer is one which is a “family” or jointly owned computer, then access to email and other information on the computer which is not otherwise password protected is usually fair game. But if the computer is solely owned by the party seeking to protect the communication, such as a work or even personal laptop that only belongs to the wrongdoing spouse, then it may not be accessed without permission or a court order. There are often issues of fact as to whether a spouse has given consent or permission to access email and other accounts. Sometimes the best practice is to seek consent to access the other person’s email accounts through discovery, or obtain a court order, to make sure that privacy rights are not violated which could prevent the information obtained being used in the case, and could even subject the person searching the electronic device or email or other account to criminal prosecution.

If you are thinking of getting into a wrongdoing spouse’s email or Facebook or other accounts, you should consult your attorney before doing so. And most importantly, remember that there are ways for your spouse in a divorce to find out most of what you post and email. Check your privacy settings in Facebook as the options are frequently changed by Facebook. Do not share your passwords with anyone, even a spouse. If you communicate with your attorney via email, use an account to which your spouse does not have access or the password. You may even wish to consider setting up a separate email account just for your legal communications, so that if your passwords and account names are requested in discovery, your attorney can object to revealing the legal communications account as protected by the attorney client privilege. THINK BEFORE YOU POST OR HIT THE SEND BUTTON!