Authored By: Florida Justice Technology Center
Some of the most popular places on the Internet are social networking sites like Facebook and Twitter. It is easy for people to create their own pages and add personal information. Sharing your pages or passing interesting or funny pages you come across to others can be great fun. It can also become a serious problem if your stories, comments or photos unexpectedly end up in the hands of someone who wants to use them against you. Many Floridians are not aware of some facts about content they put on a social networking site:
- It is NOT private;
- Posted information is often still available for someone who knows where to look, even after you delete something and think it is gone;
- Information from these sites is increasingly being used against people in legal matters, particularly family law cases.
These questions look at how what people put on social networking websites can end up being used in unexpected ways. Being aware of the potential risks can help you avoid adding content that could cause problems down the road.
Information based off a resource created by IowaLegalAid.org
Are "Private Profiles" Really Private?
Multiple Friends: The answer to this question is likely no. The problem with private networking pages is users often have many friends, sometimes into the hundreds. Suppose a Person A has a page on a social networking site and is involved in a family law case. Also suppose one of Person A's website friends is also a website friend of the other party in the case. This raises questions about the privacy of Person A's social networking page. Users should remember that all content on their networking pages can be printed off. It can also be "captured" with a screen shot. The ability to reproduce this content makes it easy to share among people who are friends on the user's page as well as those who are not. By making content such as comments or pictures available to any one person, a user may actually be making the content available to everyone.
Borrowed Content: Another risk is a user's friend could take content from the user's page and post it on a public page. "Borrowed" content might be easily tied to the user. That would mean it can be introduced against the user in a family law case. This risk is not easily dealt with because social networking sites do not allow users to stop friends from copying posted comments or pictures.
Sites with Security Breaches: Privacy of social networking sites is also limited. Many sites have been subject to hacking and other types of compromises. Since the creation of social networking sites, there have been a number of security breaches related to applications placed on those sites. Some of those breaches have made users' private information available to anyone searching the compromised site.
A security breach in March 2008 made Facebook users' private photographs available to anyone who thought to search for the user. In many cases, a user who posted photos also posted comments they intended to keep private. When this security breach occurred, the "private" pictures were not the only content made available to the masses who use the networking site. The "private" comments with the pictures were also there for all to read and pass long to others.
Is "Deleted Content" Really Deleted?
Archive Programs: Electronic archives show what a social networking site looked like on a certain date. These are now showing up in family law cases. These programs show what was on a page for a user's site on a given date, even after the site has been changed. Courts are allowing the archived information to be presented as evidence. It may be enough if you can show that the archived information was once on the user's site. Most of the time this verification is done through posted user statements or pictures.
Previously Printed Content: It is important for all parties in family law cases to know one of the first things an attorney is likely to do is some research on the Internet. This will include a search of his/her client's social networking sites, as well as the opposing side's sites. This search is likely to be done before a party in a family law case even thinks about making the user's site private or deleting negative content. Also, users often give their spouse or significant other access to their social networking sites. The significant other is likely to gather evidence off the site before being removed as a friend. This evidence could be saved for trial and presented to the court to show the user in a negative light.
It Can be Hard to Delete Social Networking Site Content: Users trying to delete social networking profiles may find it is harder than they imagined. Many have found the process for deleting profiles on sites like Twitter and Facebook can take hours. Some sites even require a user to delete each comment, photograph, newsfeed entry, etc. manually, one-by-one.
Deleted content may not actually be gone. In a recent study, pictures were posted on sixteen different social networking sites. The web address for each picture was saved and the picture was deleted. The deleted pictures did not show up on the user's profile. However, when the web address for the picture was entered, the deleted picture was easy to find. In some cases, the picture could still be accessed directly by the web address 30 days after it was "deleted."
How can Social Networking Sites be Used against me in court?
Photos: In a family law case, an attorney will often search social networking sites to get pictures showing the opposing side practicing bad behavior. For example, in custody cases pictures posted by a user showing excessive drinking will be used by an attorney to argue the other parent is unfit to be the primary caretaker of young children. Also, in divorce cases, attorneys have used photos of possessions posted on social networking sites by the other side to show the user is in a better financial situation than they asserted in court documents.
Comments: The court will seriously consider a user's comments on a social networking site in a family law case. If the one side makes comments about how much he or she dislikes the other side, the court will consider that as an example of the user's inability to encourage a relationship between the children and the other party. A user should be very careful about posting comments on what he or she might do when children are around and what sort of different behavior they may engage in when children are not home. In a recent case, a mother she said she would do drugs around her children on her networking page. The court denied physical care of her children on that basis. Also, comments from "friends" should be regulated by users. A court may consider a comment from a friend about the user being at a wild party as evidence of the user's lifestyle and perhaps inability to be the primary caretaker of children.
Applications: Many social networking sites let users add applications they may not have created themselves. Examples include videos recorded by other users of social networking sites. Users should be careful when posting these applications. They may be used by the court to determine the user's viewpoint on a particular subject. For example, a father in a custody case posted a video describing domestic violence as a good thing. This video was used to support the mother's position that the father was a violent person who had subjected her to domestic violence while they were involved.
Can I just delete the page before I go to court?
Deleting content from a social networking site may not prevent unwanted viewing of that content. Also, it may raise suspicion about someone involved in a family law case. If a user chooses to delete all or part of a page, or privatize that page after becoming involved in a family law case, that act may be used against the user as impeachment evidence. The legal community also recently began discussing whether altering a social networking site after a court case has begun is destruction of evidence. While that question has not been fully answered, many attorneys would advise their clients not to alter or destroy their pages after being served with notice of a pending case. Instead, many attorneys would encourage their current and future clients to be aware that whatever they post now may be used against them sometime in the future.
There is no way to tell how far the use of social networking sites in court proceedings will reach. There is also no way to tell how far opposing parties will go to gather this evidence. One thing is certain. All users need to take steps to protect themselves from one day having this evidence used against them. A comment or picture posted innocently with no intent of harm, and maybe even deleted, may one day come back to haunt the user during a family law case. An important question for all users to ask before posting something on a website is "would I share this information with someone on the street?" If the answer is no, the user should not post it on his or her social networking site.
Updated: May 9, 2017