The use of social media in litigation is one of the hottest topics in the legal community right now. It was even the central topic of my monthly Inn of Court meeting last night. Although people seem to be increasingly comfortable using blogs, FaceBook, Twitter, MySpace, LinkedIn, and YouTube, they also seem oblivious to the idea that those pages exist in a public domain, and information they place there can often be used against them in court. The Times of London reported last year that FaceBook is now more visited than Google.
More and more often I see parties’ FaceBook posts coming back to haunt them. Do FaceBook users have an expectation of privacy regarding information they post on their walls? Clearly the users’ privacy settings should affect how courts decide whether they have an expectation of privacy, but should courts also consider how many friends the user has, the sophistication of the user, or how discriminating the user is when deciding whether to friend someone? Does the fact that someone can easily cut and paste the information on someone’s page change the privacy expectation and, if so, does that mean that email is equally suspect since it can easily be forwarded?
One of the biggest problems I have seen in the context of family law is that adverse parties in family law disputes often have mutual friends who still have access to each party’s social networking sites. People often seem surprised when their friends or relatives provide copies of their social networking pages to the other party. In one of my cases, a client was still very good friends with her ex-husband’s sister-in-law, and the sister-in-law provided my client with copies of posts on the ex-husband’s FaceBook page that revealed some useful information about the custody dispute.
Parties may find themselves getting in trouble for more than just the information found on their pages; they may also get in trouble for information they remove from their pages. Generally, when someone reasonably anticipates litigation, that person is under an obligation to preserve (and not destroy) potential evidence. In the context of social media, this means that a party may have an obligation not to delete information from a FaceBook or MySpace page. Deleting information in contravention of this requirement may result in sanctions against the party.
Some of the family law attorneys who publish on family law listserves or blogs have indicated that they now advise their clients specifically about social media and warn them about its potential uses in court. As attorneys, we have a duty to protect our clients and to inform them of the laws affecting their cases; as such, we probably do have a duty to warn them about the dangers of sharing too much information via social media sites. We also need to be mindful of the potential treasure trove of information available about opposing parties that exists in cyber space.
As courts struggle with how to resolve the discovery and admissibility questions surrounding social media, it will be interesting to see whether the legislature steps in to provide guidance. Considering that the only statutory authority that seems to have any relevance to these disputes is the 1986 Stored Communications Act (part of the Electronic Communications Privacy Act), we will almost certainly need further guidance from Congress about these issues. When considering that the Stored Communications Act was passed in 1986 (25 years ago), think about the timeline of electronic communications. Telnet was born in 1969, FTP (file transfer protocol) was developed in 1971, the first standardized SMTP (simple mail transfer protocol) was developed in 1982, and the internet itself was basically born in 1983. The following things were all released after the Stored Communications Act was passed:
- 1991: the World Wide Web (www addresses)
- 1992: html
- 1993: The first blogs
- 1994: Amazon.com, Yahoo!, and Match.com
- 1995: Ebay, the first wiki, and Craigslist
- 1996: Hotmail
- 1999: Napster and Monster.com
- 2001: Wikipedia
- 2002: LinkedIn
- 2003: Skype, iTunes, MySpace, and Second Life
- 2004: Podcasts, World of Warcraft, FaceBook, and Flickr
- 2005: YouTube and Google Earth
- 2006: Twitter and WikiLeaks
- 2009: GoogleDocs