By Candace M. Williams
Family Law Department Head
Coleman, Chambers, Rogers & Williams, LLP
Short answer, YES. Ever wonder whether your innocent text message, Facebook posts/texts/emails are searchable, hence traceable in a divorce case? We see it all the time, a friend on Facebook cries out to her Facebook friends about her argument with her husband who is also her "friend," on Facebook. The post was embarrassing, and the husband's co-workers see it, and he knew this could lead to evidence in a future divorce case. The husband blocks the wife, and deletes the post, but now he cannot see what the wife posts. Such a dilemma, but such a pot of gold for a divorce attorney. You see the posting of a friends status "Its Complicated," this means often trouble on the domestic front. Did your wife tell the Court she is not capable of getting a job? Then, you go to LinkedIn and see she is securing interviews?
Many people make bad decisions in a pending divorce case on social media sites. Spouses blasting other spouses, or posting "division of assets," for all the world to see. This again is high cotton for the divorce lawyer who is hitting "print and save," to every communication. Communications through any social media website such as Facebook, Pinterest, Twitter, Texts messaging, Classmates.com, Flickr, Instagram, LinkedIn, and so forth are discoverable. In any divorce action, modification, contempt, legitimation, paternity action, grand-parent visitation, or other family law matter, communications by the litigants, and witnesses are often analyzed by the family law practitioner. Social media engines and texting have become second nature to us. If we feel it, taste it, or do it, we post it! More parents are upgrading cellular phone plans for their kids to "unlimited texting," because kids text hundreds of times per day.
Who can read those texts? Who can read your posts? Are they really private? Can others see your images? With texting, it all depends on a few things, such as who owns the phone, whether someone's "cleaning" it and why you may need to look into those phone records. Your provider or "carrier" keeps records of your cell phone use, including calls and text messages, and even pictures, sent from your phone. Almost all cell phone carriers give detailed information about phone's use in billing statements sent to the owner. These details include when a text message or image was sent from your phone and how much it cost to send it. If you get charged for messages and pictures sent to your phone, the bill likely will show when it was sent. However, detailed billing will NOT tell you what was written in a text message or show you the picture.
How do you read or see that information? For example, what if you suspect your spouse of having an extra-marital affair and you want to see if there's some secret texting going on? What if you want to make sure that your teenager isn't sending or receiving inappropriate pictures over the phone, or "sexting?" As a general rule, the cell phone carrier cannot assist you. Under federal privacy laws, such as the Consumer Telephone Records Protection Act of 2006, your cell phone carrier cannot give you the detailed texts and images of a spouse or child, even if you own the phone and pay the bill. The reason is due to the nature of these records will often show messages sent and received by someone else, and that person has privacy rights. There are some exceptions, though. If you think your phone is being used for criminal activities, or if you are being harassed or threatened through text messages, you may be able to get a court order requiring the phone carrier to release the records. This is not an easy task, and often involves immediate action from your local law enforcement and an attorney.
Also, many cell phone carriers limit how long text messages and images are stored on their computers. This could be anywhere from a few days to a few weeks. So, if you need to see this material, it's a good idea to act quickly. If you own the phone, or if you are dealing with your child's phone use, you may want to consider looking at what's stored in the phone itself. In most instances, you wouldn't be breaking any laws, although you may have an ethical duty not to pry or invade your child's privacy. Most cell phones store messages and pictures until someone "cleans" or deletes items on the phone, or the phone deletes information automatically to make room to store new massages or pictures. Snooping is done only at the risk of the snooper! If caught, you could be liable for damages for "invasion of privacy." Often, if we suspect a party has "deleted," texts, emails, or other communications, and the legal funds are available you may conduct a forensic analysis of a computer and cell phone. Note, typically no matter how much you stomp on it, pour on it, or throw on it, there is a strong likelihood it can still be traced.
A forensic analysis is not cheap, but often effective if you are confident damaging communications occurred on the other parties' computer. You can retrieve emails, searches from the past, texts, and images. The process is detailed in nature, and again costly. Word to the wise, if you are considering Divorce, Modification, Contempt, or any kind of litigation it may be important to ask yourself the following:
1. Facebook, do you really know your friends? If not, you may consider "cleaning," them up before you start litigation. Also, deleting past communications that may not be helpful in litigation, as well has imaging posted.
2. Texts, photos, and emails, the same rule applies. I little spring cleaning never hurts. However, remember, if another person received a communication of any nature, it does not "delete," the item you sent from his or her end. It may still be discoverable in litigation.
3. Scout every page of LinkedIn, Twitter, Facebook, and other sites for searchable content or images the other spouses legal team may utilize.
4. If a persons email is password protected, beware you could have significant problems if you break the password. See our article on Computer Trespassing What You Should Know on our website. See also our article, "How to Save Print Text Messages Facebook and Myspace in Domestic Cases."
If you would like a consult regarding the material in this article, please contact our offices at 770-534-3770 or email any one of our attorneys.