Social Networking: Is It Truly
Relevant or Just Another Place
Where Legal Professionals
Need to Tread Lightly?

Social networking services seem to be commonplace and are surfacing more and more in divorce litigation. They range from the well known sites such as Facebook, Twitter and Match.com, to some less publicized like Ashleymadison (a site where married individuals meet), Dark Odyssey (where “open minded” people meet) or Adult Friendfinder (the point of the site is casual sex). Wikipedia defines Social network sites as an online service, platform, or site that focuses on building and reflecting of social networks or social relations among people, e.g., who share interests and/or activities . A social network service essentially consists of a representation of each user (often a profile), his/her social links, and a variety of additional services. Most social network services are web based and provide means for users to interact over the internet, such as e-mail and instant messaging. Social networking sites allow users to share ideas, activities, events, and interests within their individual networks. However, to what degree social media will play in the everyday divorce case remains to be seen.

Can Divorce Rates Go Any Higher:

Over the past few months, several articles have reported that the popular social-networking sites cause one in five divorces. This idea evolved from Mark Keenan, managing director of Divorce-Online, an online divorce-service provider in the U.K., after determining that the word "Facebook" appeared in 989 of the company's 5,000 or so most recent divorce petitions. As such, he had Divorce-Online issue a news release in December 2009 stating "Facebook is bad for your marriage." Mr. Keenan acknowledged that the survey was very unscientific and further acknowledged that his company's clients aren't necessarily representative of all divorces nor did the petitions state that Facebook was the actual cause of the divorce .

Regardless of the accuracy of the claims, there are reliable statistics with regard to social networking and divorce litigation. In February 2010, the American Academy of Matrimonial Lawyers (AAML) announced results of a survey of its 1,600 members. 81% of said members said they had seen an increase in cases using social-networking “evidence” in the last five years. 81% of AAML members reported an increase in the use of evidence from social networking websites within the past five years. Only 19% reported that there was no change. According to 66% of the AAML members surveyed, Facebook is the primary source of this type of evidence while MySpace follows with 15%, Twitter at 5%, and other choices listed by 14%.

Is The Data From The Sites Discoverable:

R. 4:18-1 provides, “Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on behalf of that party, to inspect, copy, test, or sample any designated documents (including writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, by the respondent into reasonably usable form)…”

Any information from social network sites, obtained through the course of discovery, may be used at trial like any other discovery, provided it is relevant. Relevant evidence as we know is defined as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E 401 (2011). It is well settled that the relevancy of testimony must be tested by its probative value with respect to the points at issue, ., 137 N.J.L. 186, 189 E. & A. 1948), and all relevant evidence is to be admitted unless some specific rule forbids it. Simon v. Graham Bakery, 17 N.J. 525 (1955) ; Hampton v. Pennsylvania R.R., 115 N.J.L. 168, 169 (E. & A.1935), citing Simon v. Graham Bakery, 17 N.J. 525 (N.J. 1955) .

Information obtained from social networking sites, such as site registration, e-mails, “wall” posts, etc., fits well within the scope of the rule permitting electronic discovery. With the popularity of the social networking sites and the willingness of individuals to share their thoughts with limited, if any, expectation of privacy, information from these sites as well as which sites a litigant may be registered, may be relevant and become more routine in discovery demands.

What Information From These Sites Is Relevant In A Divorce Case:

The question can only be answered by the attorney seeking to establish a particular fact or address a specific issue. The following are real examples of evidence found from social media websites which may or may not be relevant depending on if a foundation for their introduction can be laid:

• A - In a custody case where the father seeking custody identifies himself on match.com. as single, never having been married and having no children
• B - In a case as to the issue of parenting time and dissipation of assets where the Complaint for Divorce annexed to it 36 pages of the husband’s posts on www.theeroticreview.com. He rated his experiences with prostitutes and described, in detail, which women would allow him to have unprotected sex, the kind of sex, their fees and set forth the frequency of his visits.
• C - In a domestic violence case, the wall posts of an angry ex-boyfriend including threats to damage property, to do harm to others and his admission that he stalked his ex-girlfriend by logging on Facebook through a friend’s account.
• D - In a contempt of a Final Restraining Order, where the husband, or allegedly his brother, posted images of Miss Piggy in the place of his wife’s profile picture on her Facebook account.
• E - In a case where a spouse seeks an annulment of a second marriage on the grounds of fraud after finding e-mails on Facebook between her husband and an old girlfriend following a college reunion. The husband promised to have children but failed to disclose he had a vasectomy after his second child was born.
• F - In a Tevis case where a hedge fund manager lost her job allegedly because the husband posted personal information on his Facebook wall about the wife and divorce which was viewed by common friends in the industry.

This information is only as relevant, like any other evidence, if it is discovered. Whether a spouse comes across information in an e-mail or text message when her spouse neglects to lock his Blackberry is no different than a spouse who finds the same information when her spouse fails to log out of his Facebook account on the home computer. Evidence, declarations against interest and admissions come in all forms.

Was The Information Properly Obtained:

We must warn our clients on how the information from these sites should be obtained. Logging in to another’s password protected account is illegal. If you are not an authorized user or have access to the account, doing so could be a violation of the Stored Communications Act, 18 U.S.C. 2701 or the Computer Fraud and Abuse Act, 18 U.S.C. 1030. These laws have been utilized to prosecute unauthorized access to web-based email accounts. While criminal prosecution is unlikely, civil prosecution may be. For example, in Simpson v. Simpson, 490 F.2d. 803, 809 (5th Cir.1974) the court supported a finding that Congress did not intend to include family members or spouses as liable under the Act. In that case, the Court stated that the primary goal of the statute was to control crime and that the statute was not sufficiently specific to create a federal cause of action for interspousal wiretapping.

The New Jersey Wiretap and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-3 was enacted in 1968 and is identical to the Federal Wiretap Act, 18 U.S.C. 2510. The New Jersey Wiretap Act prohibits the interception of conversations, with the exception of certain limited circumstances. Similar to the amendment to the Federal Wiretap Statute, New Jersey amended its wiretap act in 1993, to regulate access of stored electronic communications. (Cacciarelli v. Boniface, 325 N.J. Super. 133 (Ch.Div.1999))

The New Jersey Statute, as amended, N.J.S.A. 2A:156A-27(a) , provides:

A person is guilty of a crime of the fourth degree if he:

1 - Knowingly accesses without authorization a facility through which an electronic communication service is provided or exceeds an authorization to access that facility, and
2 - Thereby obtains, alters, or prevents authorized access to a wire or electronic communication while the communication is in electronic storage.

Such an unlawful intrusion was distinguished from a lawful use of another’s electronic communications, as determined by Judge Issenman in White v. White, 344 N.J. Super. 211 (Ch. Div. 2001). In that contested custody matter, the wife found evidence of her husband’s infidelity and subsequently had an investigator retrieve email messages from the family’s shared computer. The husband moved to suppress the evidence alleging a violation of the New Jersey Wiretap Act. The Court held that said evidence could be used at trial (if relevant to the custody issues) because there was a diminished expectation of privacy due to the family’s living arrangements (the room where the computer was stored was regularly used by all family members), the fact that the wife was an authorized user of the computer and because the messages were in post transmission storage on the computer’s hard drive. In that case, the wife was an authorized user of the computer and did not require any password or security code to access the information; rather, she accessed information stored on the shared computer’s hard drive. The Court made it clear that the retrieval of the saved information, to which the wife inWhite had unrestricted access, was permissible while, logging into an account or accessing a spouse’s personal computer not shared by the family would likely have a different outcome. Therefore, tread lightly when asking your clients to obtain information off the computer or these websites. While the “Fruit of the Poisonous Tree Doctrine” in criminal law does not apply to evidence found in civil cases, the Court still has the discretion to exclude the evidence underN.J.R.E. 611 if it were improperly obtained. See Tartaglia v. Paine Webber, Inc,. and Heber Janick, 350 N.J. Super 142 (App. Div. 2002).

See also White, supra, 344 N.J. Super. at 222, where the husband argued that the Wife required a warrant or court order prior to accessing and copying his email and, as such, the email communications were unlawfully obtained and inadmissible evidence. However, the White court rejected that argument in accordance with N.J.S.A. 2A:156A-29 , which provides that only a law enforcement agency may compel disclosure of an electronic communication and only if the agency has first obtained a warrant or court order.

How Else Can I Obtain The Information:

As long as the information is obtained lawfully, relevant evidence from these social media sites can and will be used at trial. However, Courts have been divided on the application of the Stored Communications Act in the modern society of social networking sites.

For example, in Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010), a defendant subpoenaed several social networking sites seeking disclosure of plaintiff’s subscriber information and communications. Plaintiff sought to quash the subpoenas arguing that such disclosure would violate the Stored Communications Act. The magistrate judge found that the SCA was inapplicable and denied plaintiff’s motion to quash. Upon reconsideration, the district court judge found the SCA was applicable to the social networking websites at issue (in that case Facebook, MySpace, Media Temple) and quashed the subpoenas as to private messages. The court did set forth a distinction between private and public messages. For example, messages between two parties versus those posted more publicly, such as on their Facebook page “wall” or MySpace page “comments.”

On the other hand, if the service agreement that the user has with the provider allows the user's access to stored messages, the user may be obligated to preserve any relevant messages and potentially produce them in response to discovery demands. In Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich, 2008), the district court was faced with the issue of a motion to quash a subpoena for text messages to the other party’ internet service provider. In that case, the court held that text messages stored by defendant's internet service provider were within defendant's control because defendant had a "legal right to obtain" them.

For example, Facebook provides the following Privacy Policy with regard to information sharing and responding to legal requests:

We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards. We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities.

Verizon Wireless and AT&T wireless have similar privacy statements to Facebook’s privacy policy. However, any real evidence with content of communications is difficult to obtain. In fact, both Verizon Wireless and AT&T report that they do not store and are unable to retrieve text messages. Once those messages are deleted off of the cell phone, they are gone. The only information stored by those wireless carriers would be the telephone numbers of the sender and recipient of the message and the time/date when said messages were sent. Thus, providing little, if any, useful information. On the other hand, the wireless provider T-Mobile reports that the content of messages are stored and can be retrieved under appropriate circumstances.

Conclusion:

The use of evidence from social networking sites is no different than evidence in written, e-mail or verbal form. So long as the information is relevant and the foundation laid, under N.J.R.E. 611 and 901, the information can be used at trial. To that end, you may soon see requests for social networking data in your boilerplate discovery demands and routine subpoenas issued to these sites.