Facebook Passwords and Child Custody

Mr. Gallion convinced a Connecticut judge to order the parties to exchange passwords to their Facebook accounts and dating websites, and to issue an injunction preventing his wife from deleting any material from her social media accounts. The judge also ordered that neither party was permitted to go onto the other's site and post messages purporting to be the other.

Online Privacy

This all raises issues of privacy. If a party's Facebook page is open to the public, there is little expectation of privacy regarding what the person posts. In such a case, the Facebook profile is no different from a website visible to anyone with Internet access. Or no different from making a statement to a crowd of people.

If a profile is private, however, and visible only to that person's friends, then what right does anyone who is not a friend have to see it? The idea with Facebook privacy settings is intentionally to control who has access to what is posted. Those responsible enough to use privacy settings to restrict who has access to their updates are indeed expecting that they have some modicum of privacy. But not according to the judge in the Gallion case.

Take this a step further. What about private messages between two Facebook users? These are nothing more than e-mails ' a private conversation between two people. If your spouse has your password, he or she can read your private messages, which were never intended for anyone's eyes other than the recipient of the message. Apparently these private messages are not so private anymore for the Gallions.

How Far Can It Go?

Imagine a scenario where a judge orders one litigant to give his/her Gmail or Hotmail password to the spouse or ex-spouse. Not only are there private messages in the litigant's e-mail inbox and outbox, but even privileged information ' like an e-mail from the litigant's doctor's office about a medical condition or from the litigant's lawyer about the case.

The judge in the Gallion case also gave each spouse access to the other's dating website accounts. These accounts are often viewable to other subscribers to the service, and not to the public at large. Dating websites also have private message abilities, and are not intended for anyone to read other than the recipient. But in this case the Gallions can go into the other's inbox and outbox and see all kinds of private messages, many of which probably have nothing to do with child custody.

Is It Fair?

The justification for the judge's order in this case is simple: If you do not want someone else to read what you write, do not write it. Or just do not use social media altogether. No one is forcing you to use Facebook

This reasoning ignores the pervasiveness of social media and the fact that this is how millions of people now communicate (Facebook alone has more than 800 million active users). It seems that the younger the person, the more he or she communicates using social media, and communicates more often. Simply saying “don't use social media” should not be the answer. As is often the case, though, the law takes a while to catch up with technology. There is no law providing a right to privacy on social media accounts. There are no uniform parameters on what is “fair game” in divorce or custody litigation.

The question should be: What expectation of privacy does the spouse on Facebook or Twitter have? A claim for invasion of privacy can survive only if the victim had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. The answer may depend on how protected the statement was, and of course how it was obtained.

If a mother updates her Facebook status and announces that she is in over her head with raising the children and has taken to hitting the bars instead of looking after the kids, few would question the relevancy of this statement in a child custody trial. The question becomes how was the statement obtained, and did the mother have an objectively reasonable expectation of privacy when she posted it.

The first place to look is her privacy settings. If her profile is public, and anyone can view it (and find it by simply “Googling” her name), she has little claim that a reasonable person would have expected the statement would remain private. But what if her Facebook page instead is private, so that only her Facebook friends can view the update? If a friend of hers ratted her out to her husband and forwarded the update to him, can she be said to expect any privacy? Would it be different if she had verbalized the sentiment to the friend, and the friend was called as a witness at trial? Once the words are publicized, can there be an expectation they will not be repeated or reproduced? Probably not.

Granting Access

The harder question is granting access to private messages sent via Twitter or Facebook. These are really not distinguishable from e-mails. Again, if the recipient forwards the message, shame on the sender for sending to an untrustworthy source.

A different situation arises, however, when the other spouse is granted the password to the social media account and can view all sent and received messages. It is hard to imagine that the social media user would have anticipated that ever happening and likely has a reasonable and objective expectation that their spouse would not be granted unfettered access to the entire account.

This is, of course, different from “cyber-snooping.” For example, if a wife going through a divorce accesses her husband's e-mail account, has she invaded his privacy? It depends. If the couple still lives together and the entire family has access to the computer and the husband leaves his e-mail account open, he would have a hard time showing that a reasonable person would have expected the emails remain private.

If a husband, during the marriage, gives his password to his wife and tells her to log on to his Gmail account to send an e-mail on his behalf, then fails to change the password after the separation, can he be heard to have a reasonable expectation of privacy for that account later? Doubtful.

In the Gallion case, it appears that the judge may have overstepped his bounds. If either party sent a private email to someone else on their Facebook account or a private message on a Twitter account, they certainly had a reasonable expectation of privacy that those messages would be private, and not accessed by their spouse.

For now, though, there is no clear guidance on what aspects of social media sites have privacy protections.

Conclusion

As matrimonial attorneys, we can learn some lessons from the Gallion case. First, tell your clients that they should envision everything they post on Facebook or tweet on Twitter as being printed out on paper and marked as “Exhibit A.” In other words, treat anything you put on the Internet as though you are yelling it in a crowd, not whispering it your best friend. If you have a client you know cannot prevent himself from saying something he will regret on Facebook, make him get off Facebook. And check periodically to insure he stays off. Better yet, make ALL your clients get off Facebook. Litigation is serious business and some angry birds will go to any lengths to attack the others.

Remind your client that even “private” messages on Facebook or Twitter (or dating website) might be made public some day. So watch what you write. Today's tweet is tomorrow's smoking gun in court.

Lynne Gold-Bikin, a member of this newsletter's Board of Editors, is a partner in Weber Gallagher's Family Law practice group, which she chairs. Prior to joining the firm, Ms. Gold-Bikin was a partner and chair of the Family Law Practice Group at WolfBlock LLP. Andrew D. Taylor is a partner in Weber Gallagher's Family Law Practice Group in Norristown, PA.

It is hard to remember a world before social media. Today it seems everyone is on Facebook, Twitter, LinkedIn or whatever website promises the most exposure to the largest number of friends, followers or connections. A problem arises, however, when social media meets the courtroom: What, if any, privacy can a user of social media expect? This is a question that Stephen and Courtney Gallion are undoubtedly asking themselves now.

Passwords in the Courtroom

In Gallion v. Gallion, FA114116955S, Conn. Super.Ct., Sept. 30, 2011, a Connecticut judge ordered the Gallions, who were in the middle of a divorce and a battle for primary custody of their children, to exchange passwords to their Facebook accounts and dating websites. The unusual move was prompted by statements made by Ms. Gallion on Facebook, wherein she apparently called into question her own ability to care for her children. She gave her Facebook password to her husband's attorney during a deposition, but then immediately texted a friend to delete some messages and change her password.

Mr. Gallion convinced a Connecticut judge to order the parties to exchange passwords to their Facebook accounts and dating websites, and to issue an injunction preventing his wife from deleting any material from her social media accounts. The judge also ordered that neither party was permitted to go onto the other's site and post messages purporting to be the other.

Online Privacy

This all raises issues of privacy. If a party's Facebook page is open to the public, there is little expectation of privacy regarding what the person posts. In such a case, the Facebook profile is no different from a website visible to anyone with Internet access. Or no different from making a statement to a crowd of people.

If a profile is private, however, and visible only to that person's friends, then what right does anyone who is not a friend have to see it? The idea with Facebook privacy settings is intentionally to control who has access to what is posted. Those responsible enough to use privacy settings to restrict who has access to their updates are indeed expecting that they have some modicum of privacy. But not according to the judge in the Gallion case.

Take this a step further. What about private messages between two Facebook users? These are nothing more than e-mails ' a private conversation between two people. If your spouse has your password, he or she can read your private messages, which were never intended for anyone's eyes other than the recipient of the message. Apparently these private messages are not so private anymore for the Gallions.

How Far Can It Go?

Imagine a scenario where a judge orders one litigant to give his/her Gmail or Hotmail password to the spouse or ex-spouse. Not only are there private messages in the litigant's e-mail inbox and outbox, but even privileged information ' like an e-mail from the litigant's doctor's office about a medical condition or from the litigant's lawyer about the case.

The judge in the Gallion case also gave each spouse access to the other's dating website accounts. These accounts are often viewable to other subscribers to the service, and not to the public at large. Dating websites also have private message abilities, and are not intended for anyone to read other than the recipient. But in this case the Gallions can go into the other's inbox and outbox and see all kinds of private messages, many of which probably have nothing to do with child custody.

Is It Fair?

The justification for the judge's order in this case is simple: If you do not want someone else to read what you write, do not write it. Or just do not use social media altogether. No one is forcing you to use Facebook

This reasoning ignores the pervasiveness of social media and the fact that this is how millions of people now communicate (Facebook alone has more than 800 million active users). It seems that the younger the person, the more he or she communicates using social media, and communicates more often. Simply saying “don't use social media” should not be the answer. As is often the case, though, the law takes a while to catch up with technology. There is no law providing a right to privacy on social media accounts. There are no uniform parameters on what is “fair game” in divorce or custody litigation.

The question should be: What expectation of privacy does the spouse on Facebook or Twitter have? A claim for invasion of privacy can survive only if the victim had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. The answer may depend on how protected the statement was, and of course how it was obtained.

If a mother updates her Facebook status and announces that she is in over her head with raising the children and has taken to hitting the bars instead of looking after the kids, few would question the relevancy of this statement in a child custody trial. The question becomes how was the statement obtained, and did the mother have an objectively reasonable expectation of privacy when she posted it.

The first place to look is her privacy settings. If her profile is public, and anyone can view it (and find it by simply “Googling” her name), she has little claim that a reasonable person would have expected the statement would remain private. But what if her Facebook page instead is private, so that only her Facebook friends can view the update? If a friend of hers ratted her out to her husband and forwarded the update to him, can she be said to expect any privacy? Would it be different if she had verbalized the sentiment to the friend, and the friend was called as a witness at trial? Once the words are publicized, can there be an expectation they will not be repeated or reproduced? Probably not.

Granting Access

The harder question is granting access to private messages sent via Twitter or Facebook. These are really not distinguishable from e-mails. Again, if the recipient forwards the message, shame on the sender for sending to an untrustworthy source.

A different situation arises, however, when the other spouse is granted the password to the social media account and can view all sent and received messages. It is hard to imagine that the social media user would have anticipated that ever happening and likely has a reasonable and objective expectation that their spouse would not be granted unfettered access to the entire account.

This is, of course, different from “cyber-snooping.” For example, if a wife going through a divorce accesses her husband's e-mail account, has she invaded his privacy? It depends. If the couple still lives together and the entire family has access to the computer and the husband leaves his e-mail account open, he would have a hard time showing that a reasonable person would have expected the emails remain private.

If a husband, during the marriage, gives his password to his wife and tells her to log on to his Gmail account to send an e-mail on his behalf, then fails to change the password after the separation, can he be heard to have a reasonable expectation of privacy for that account later? Doubtful.

In the Gallion case, it appears that the judge may have overstepped his bounds. If either party sent a private email to someone else on their Facebook account or a private message on a Twitter account, they certainly had a reasonable expectation of privacy that those messages would be private, and not accessed by their spouse.

For now, though, there is no clear guidance on what aspects of social media sites have privacy protections.

Conclusion

As matrimonial attorneys, we can learn some lessons from the Gallion case. First, tell your clients that they should envision everything they post on Facebook or tweet on Twitter as being printed out on paper and marked as “Exhibit A.” In other words, treat anything you put on the Internet as though you are yelling it in a crowd, not whispering it your best friend. If you have a client you know cannot prevent himself from saying something he will regret on Facebook, make him get off Facebook. And check periodically to insure he stays off. Better yet, make ALL your clients get off Facebook. Litigation is serious business and some angry birds will go to any lengths to attack the others.

Remind your client that even “private” messages on Facebook or Twitter (or dating website) might be made public some day. So watch what you write. Today's tweet is tomorrow's smoking gun in court.

Lynne Gold-Bikin, a member of this newsletter's Board of Editors, is a partner in Weber Gallagher's Family Law practice group, which she chairs. Prior to joining the firm, Ms. Gold-Bikin was a partner and chair of the Family Law Practice Group at WolfBlock LLP. Andrew D. Taylor is a partner in Weber Gallagher's Family Law Practice Group in Norristown, PA.