May 18, 2015

WARNING: Facebook is Not Private, Especially in Divorce Litigation

Gregory Maksimuk

Facebook is perhaps the largest and, at least among adults, the most frequently used social networking site.  Users willingly and regularly post information regarding friends, hobbies, locations, relationship status, likes/dislikes, interests, favorites, photos, and the like.  In many ways, a Facebook profile becomes a personal vault of information.  As a result of all the information on Facebook, the profiles can be a treasure trove in the divorce setting. Some common examples of this might include:

  • Pictures posted of a parent with an alcoholic beverage when alcohol abuse is at issue;
  • Posting pictures of your child on Facebook and/or a dating social media site while you are going through a divorce with custody issues;
  • Pictures of you in a compromising circumstance;
  • Pictures of illegal drug use/paraphernalia or comments supporting illegal drug use, especially when drug use is at issue; or
  • Statements about hidden assets.

Even if the privacy settings in Facebook are supposed to keep your information private, is it really private in the context of a divorce? Recent cases on the issue across the country show a trend toward virtually no expectation of privacy on Facebook – despite the privacy settings or safeguards to keep the information posted private.  While at this time Illinois courts have not yet addressed this issue expressly, the rulings set forth below are a warning of the risks associated with posting on Facebook and are indicative of where Illinois courts may ultimately go.

In April 2015 a man in Texas was jailed for refusing to turn over Facebook and Twitter passwords in a business bankruptcy case. (1)   He maintained Facebook and Twitter accounts for his business and while the accounts initially had the business name, he thought of the accounts as his own and injected his views on them.  At the time his case was in court he had deleted the business name from the accounts and substituted his own.  In court, a federal bankruptcy judge found the accounts to be business assets and ordered him to turn over the passwords.  When he refused, he was sent to jail for contempt of court.

While on its face this case was related to a business, it is not the first time a judge has ordered the turnover of passwords.  In what is perhaps one of the most invasive rulings on access to a Facebook account, in September 2011 a divorcing couple in Connecticut was ordered to provide passwords to their “Facebook and dating website[s]” to their spouse’s attorney! (2)   While the passwords were only to be provided to the other spouse’s attorney, it actually provided the other party with complete access to each party’s Facebook account.

In January 2015, a Florida court, in connection with a personal injury lawsuit, found that an individual has no expectation of privacy on Facebook. (3)   The rationale was that “information that an individual shares through social networking web-sites like Facebook may be copied and disseminated by another, the  expectation that such information is private, in the traditional sense of the word, is not a reasonable one.”  In reaching its decision, the court expressly relied on two additional points: 1) Facebook does not guarantee privacy; and 2) even if privacy settings on Facebook were used to prevent disclosure outside of ‘friends’, it was not reasonable to expect the ‘friends’ to keep it private.

The above cases are just a sampling of the rulings that are occurring across the country on this topic. While they focus on Facebook, the rationale can be easily applied to other social networking sites.  Accordingly, parties to a divorce should be warned that privacy in the context of social networking and divorce is almost a foreign concept.  If you are thinking about going through a divorce or already involved in the process, the only way to truly protect yourself on social media is to be extremely cautious about what you post, knowing the same can potentially be subject to full, complete and involuntary disclosure!

(1) In re: CTLI, LLC, 2015 WL 1588085, 60 Bankr.Ct.Dec. 243, Bkrtcy.S.D.Tex., April 03, 2015 (NO. 14-33564).

(2) Stephen Gallion v. Courtney Gallion, 2011 WL 4953451, Conn.Super., September 30, 2011 (NO. FA114116955S).

(3) Maria F. Leon Nucci and Henry Leon v. Target Corporation, American Cleaning Contracting, Inc., and First Choice Building Maintenance, Inc. 2015 WL 71726, 40 Fla. L. Weekly D166, Fla.App. 4 Dist., January 07, 2015 (NO. 4D14-138).

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