Over the past week Facebook has made a couple of major headlines.
First, Facebook had its IPO and became a publicly traded company. While the result of the offering probably was not what many wanted, there certainly was no escaping the hype leading up the to public offering or the insider information scandal that quickly followed. Nearly every news channel and radio station is talking about the Facebook IPO in some way.
Second, Mark Zuckerberg married his college girlfriend, Priscilla Chen, but he conveniently waited to say “I do” until one day after Facebook went public. Although I’d be willing to bet a big chunk of change that Mark Zuckerberg had many, many attorneys with incredibly high hourly rates working tirelessly to create him an iron-clad pre-nup to protect his billions, in a later post I will discuss some of the reasons why Zuckberg could have waited to tie the knot. Hint: It wasn’t cold feet, California is a community property state like Louisiana.
And third, over the weekend the results of a survey conducted in England revealed that last year more than a third of petitions for divorce contained the word “Facebook.” In my experience in the practice of family law for nearly five years now, the results of this survey really do not come as much of a surprise. Each year more and more people have begun to use Facebook and many use the site as an opportunity to connect with old friends, and in some cases old flames. That said, what is starting to become more prevalent now is parties subpoenaing and conducting discovery of their spouse’s Facebook and other social networking sites.
No matter how private your privacy settings are you should always be aware and think twice before posting anything on Facebook. A good rule of thumb to live by is that nothing that you put on the internet is ever truly private. I often tell my clients to think before they post anything how it could be used against them. You truly need to think to yourself “Would I be okay with an opposing attorney reading this post or this private message out loud in a courtroom full of people and in front of a Judge who is ultimately judging my character and making the decision on my case?” If the answer is “No” or “Maybe” or “I’m not sure” or basically anything but “Yes”, then you need to walk away from the computer, Ipad or cell phone and not post that post or not that send message.
I’ve been on both sides of the divorce and child custody litigation post-Facebook era, meaning that I have used crucial evidence found on Facebook against an opposing party and I have also had clients that have had their case severely damaged by things said on Facebook. It is also important to note that private messages are not truly private and can be subpoenaed. Even if you block your spouse from your Facebook page a mutual friend could print out and turn over scandalous pictures, posts, or any other information that could be used against you.
Further, even if you start blocking friends of friends to protect yourself your spouse can obtain a subpoena and require Facebook to turn over its records on your profile. You may wonder if they subpoena your profile what information can they obtain? The short answer is that a lot, if not all, of your information on Facebook is subject to exposure when under a subpoena’s authority. Facebook keeps records of your profile, your posts, status updates, posts on other people’s walls, check-ins, deleted posts, messages, friends, log in dates, and IP addresses, just to name a few.
Now with this being said you do not have to go home unplug your computer and throw it out your window to protect yourself. Rather, what you should do is just be smart. Before you post a comment, picture, or link ask yourself if it can be used to make you look bad in anyway. If the answer is “Yes”, “Maybe”, or “I’m not sure” then don’t post it!! Also, be very careful about where your friends “check you in”, as this can happen without your knowledge until you notice the next time you log on.
I am certainly not telling you to get off of Facebook completely if you are going through a divorce or custody litigation. Facebook can be a fun website that allows you to connect with friends and family members to stay in touch, but if you are not careful with your posts, what you do on Facebook can come back and harm you in the long run. It’s up to you to protect yourself from that happening. So read twice and post once!!