Posted On: December 21, 2011 by Gasper Law Group

Facebook and My Space and Twitter, Oh My!

The Gasper Law Group, PLLC

In the modern age, most Americans rely on social media to stay connected with friends and family. Social media is an outlet for personal expression and often people post their deepest fears and secrets for the world to see. Unfortunately, sometimes the ease of using social media outlets for self expression leads to posting items that might best be kept private. Job recruiters warn employees entering the job market against posting items that could influence prospective employers. Politicians and celebrities have lost credibility and careers over items posted on social media sites. Just look at the controversy currently surrounding New York Congressman Anthony Weiner who allegedly sent out a Twitter stream with a lewd photograph attached. Regardless of the outcome of any investigation into how the incident occurred, Mr. Weiner’s career will be forever linked with this allegation.

While these incidents are well documented in the American mind, what many people do not consider is the impact social media can have on pending litigation. In the domestic litigation arena, when the mud starts flying in the courtroom, postings on websites can come back to haunt a party to a case. Items posted on a Facebook or My Space page can be used to show that someone is an unfit parent. Postings disparaging the other parent can be used to demonstrate threats or an inability to foster a loving relationship between the children and the other parent (an important consideration for the Court in determining which parent should have the majority of parenting time with the children.) Bragging about purchases like new cars or partying can come up in litigation to show that a party isn’t obeying Court orders not to use marital assets during a divorce.

Not to mention, of course, what the parties may have said to each other during a nasty divorce. In the “old days” text messages would drop off of a phone unless specifically saved. In the modern world of the I Phone and Droid with their expanded memories, text messages can basically be saved indefinitely. What is the lesson to be learned? When getting into an argument during a divorce or custody case, think about what it will be like to be sitting in Court explaining to a Judge why you called the other party that particular name. The momentary satisfaction of telling your soon to be ex where they can go pales in comparison to the embarrassment of trying to explain that statement six months later. As an attorney practicing in this area, the other lesson I can convey is to save everything the other party sends you. From text messages to emails to phone logs, all of the communications made by the other party may very well play a significant part in securing your rights during the case.

In the criminal arena, being careful about what you say on the Internet is, if anything, even more important. Police are well aware of the opportunities to “catch” criminals on the Internet. As a criminal defense attorney I’ve seen that almost every metro area in Colorado has a Detective that spends at least part of his or her time trolling the Internet chat rooms posing as an underage child. The lesson to be learned here is that any stranger you may be chatting with could very well be a police officer. If a criminal defendant misses where a police officer states his or her age and engages in lewd chatting, he or she could very well find themselves in handcuffs facing prosecution as a sex offender. Prosecutors and probation and parole officers can also use social media to determine if defendants are violating the terms of their bond, probation, or parole.

Finally, there are a number of crimes relating directly to activity on the computer. For example, the Harassment statute makes it a crime to initiate communication with someone by phone, text message, or computer “in a manner intended to harass or threaten bodily injury or property damage…” This is a Class 3 Misdemeanor punishable by up to six months in the county jail. Internet Sexual Exploitation makes it a Class 4 felony to invite or entice a person the defendant knows or believes to be under 15 years of age (and who is at least 4 years younger than the Defendant) via computer or text message to expose their intimate parts or observe the defendant’s intimate parts. An adult convicted of this crime faces, at best, a minimum of ten year to a maximum of the rest of his or her life on probation.

The moral of the story? Anytime you log onto your Facebook page, or type out a text message stop and think about where it’s going, who will see it, and how it could be used. And if that gives you a moment of concern…just delete it.