Senior
Project Proposal
Megan
Stone
17
December 2014
- Title of Project: Social
Media in Family Law: A Cautionary Tale
- Statement of Purpose:
In my senior
research project, I will attempt to uncover the dangers of social media in family
law and expose them to the public. Many cases in family law, whether regarding
divorce, child custody, or domestic violence, can be ruined as the secrets
clients keep from the opposing party and even their attorney are unveiled
through Facebook, Twitter, Instagram, Tumblr – you name it.
But exactly
how prevalent is this issue? For my research, I will answer the question: what
kinds of cases within family law are most often affected by information shared
on social media? Additionally, I will examine the types of social media that
expose this supposedly hidden information the most.
- Background:
When I was
in 8th grade, I gained two family members: foster sisters. After being taken
away from their family and being ordered to abstain from contacting either of
their parents, they found a home with me and my family. However, my parents
soon learned that one of the girls we took in had been contacting her mother
against the will of the judge. How was she contacting her mother, you ask? She
had been communicating with her mother on her phone using Facebook messenger.
This sparked my interest: how does the use of technology, so prevalent in the
modern day, affect other families facing legal matters?
When I met
with my on-site project mentor, she seemed less than shocked that I chose to
focus on social media for my research, claiming that it is a “hot topic” not
only in family law, but within all aspects of law in recent years. Many people
have blogs about this topic, many news reports can be found about this topic,
and many cautionary warnings can be found on websites backed by attorneys. Yet
this attention has not made a firm grasp upon people, as it continues to be an
issue.
- Prior Research:
“Should family lawyer, Rip Van Smith
awaken in the year 2000 after a thirty year sleep, he would be lost, unable to
practice family law,” (Inker). Monroe L. Inker claims that this is due to the
drastic increase of divorce over the last thirty years, sparking new
intersections of family law with “property, commercial, business, tax, and
bankruptcy laws.” However, this claim can also be made regarding how different
the field is due to the expansion of technology and social media alone.
“From things like a local sheriff
trying to find a missing child, to a federal marshal tracking a fugitive, to a
police department investigating an assault, to a national security official
investigating a terrorist threat,” the government will use Facebook to gather information
about ongoing investigations (Ullyot). In June 2013, Facebook was fighting back
against bulk search warrants. However, in September 2013, the court denied
“Facebook’s motion to quash the search warrants”, as Facebook had “no legal
standing to contest the order,” (Sonderby). This introduces a problem: setting
a post to private or deleting messages will not protect the Facebook user from
surveillance – the court can still access this information without the member
ever knowing, as the faces behind Facebook can do nothing to prevent these
legal measures.
An unanticipated problem can also be
found in a member’s friends list. A “the lawyer for a litigant can ethically
obtain photos, posts, or other information from the social networking site of a
witness or the opposing party” if the member took no measures to use any
privacy settings (Gordon). Leslie Gordon gives an example of how information
shared on Facebook may impact a family law case: “a mother seeking custody of
three children who has portrayed herself on Facebook as a single party girl, complete
with pictures of her scantily clad self hoisting drinks in various settings,
may have trouble if those pictures and her postings about her weekend
activities come to the attention of the court or a custody evaluator.”
Dennis Kennedy, a lawyer who writes
about legal technology, published an article called “Saving Face: 5 Tips to
Better Security on Facebook”, which addresses the dangers of lawyers using
Facebook. His five tips include changing the password on a regular basis (as
well as not sharing the password with anyone), adjusting the privacy settings,
avoiding using Facebook applications when possible (as they often share
information without the knowledge of the user), taking control of what friends
can post on a member’s profile by changing settings, and using “friend lists”
to manage who can see what more specifically (Kennedy). These tips are not only
helpful in protecting the privacy of lawyers, but also that of clients. For
some lawyers, like Jennifer Sawday, Facebook is seen as a channel to maintain
an “ongoing relationship” with clients; however many lawyers, such as Michelle Rozovics,
prefer to keep their personal and professional lives separate, as allowing
clients or opposing attorneys to know “your habits could be used as leverage
against you to the detriment of your client,” (Hogan). Another advocate against
the intersection of one’s personal and professional life is Jennifer Ator, who
strongly urges against becoming friends with clients, while suggesting that
lawyers instead set up a “Facebook page through the business solutions and
allow your ‘friends’ to become a fan of your practice,” (Ator). In a letter to
the editor for the ABA Journal, a lawyer commented that he had figured out a
system to use with the purpose of keeping his personal and private life
separate: the same “friend lists” that Dennis Kennedy spoke of. “I have all of
my law school classmates on one list and they are not able to see all parts of
my profile. These are people I have to work with in a professional setting. I
don't feel like they need to know who I'm dating or what I did last weekend,” (West).
- Significance:
It is clear
that people think of social media as a private atmosphere in which to share
their stories, adventures, problems, and complaints. However, the common
warning that parents often give their children that “Once you put something on
the internet, it’s out there and there’s no taking it back,” also applies to
adults. Facebook and Twitter and Instagram are public websites, despite what
many parties involved in family law cases believe. This inadvertent sharing of
supposedly private information has become a prevalent source of destructive
evidence for family law cases.
This
research will potentially spread awareness of this danger and will hopefully
aid lawyers in the struggle to protect the best interests of their clients.
After all, the lawyers cannot control what their clients do or don’t do, what
they post or don’t post, what they share or don’t share. In this experience, I
hope to learn more about family law and how a legal firm operates, as well as
learning more about the impact of social media on family law through research
for my own project. In my work with the family law firm, I aim to highlight
just how common it is for a client to accidentally throw out a case by
mistakenly sharing private aspects of their lives on public social networks.
Awareness is key with this project, as this problem can be virtually eliminated
with the spread of knowledge about the lack of privacy these social websites
provide in reality.
In divorce
cases, “66% of online divorce evidence comes from Facebook” and “four out of
five American divorce lawyers note the use of social networking ‘evidence’ has
increased in divorce proceedings in recent year” (Cheshire Family Law), Some
divorce cases may even begin by a spouse discovering things about his or her
marriage by finding things that their partner shared in some way through
Facebook. For example, the “world’s first divorce by Facebook” (Tozer) occurred
in 2009 when Neil Brady posted on Facebook that he had ended his marriage,
before even speaking to his wife about the matter.
- Description:
To answer my
question regarding the prevalence of family law, I will record my observations from
my internship at the Law Office of Dennis Levine, while using those resources
to discover the myriad of cases impacted in some way by social media. This
research will be focused upon the correlation between family law cases affected
by social media and the impact upon the final outcome of a case. What I hope to
produce as a result of my research is to spread awareness of the impact of
social media upon family law cases, while providing a realistic analysis of
cases involving social media in the past.
- Methodology:
During the
ten weeks of involvement with my internship, I will be dividing my project into
three phases in order to answer my research question. First, I will produce an
anonymous survey (with the hopes of obtaining consent from clients). This
survey will hopefully show how prevalent the use of social media can be while
clients are active parties in family law cases. Second, I will interview
several attorneys that I will meet throughout my internship to gain a broader
perspective of how social media influences family law, and how often this
influence occurs. Third, I will produce a series of blog entries during my
internship, illustrating any patterns that I may see while following and
analyzing several family law cases, through access to an extensive database at
my internship. I will likely follow cases which revolve around specific evidence
from social media. I will delve into the details of the case and will speculate
(with the guidance of my faculty adviser and my on-site mentor) as to how the
result of the case might have changed if not for the involvement of evidence
from social media.
- Problems:
One problem
that I can predict may be that clients at the firm may not want to participate
in a survey, even if that survey is anonymous, which may skew the data, if it
does not prevent the data from being obtained altogether. Unfortunately, I will
not know the scope of participation in this survey until I begin my internship
and get the opportunity to ask the clients about their participation. If I do
not receive enough participation for the survey to obtain significant results
(which prove relevant to my question), I will likely shift the focus of my
research upon specific cases from the past in order to analyze just how much
social media can alter the potential outcome of a case.
- Bibliography:
Ator,
Jennifer J. "From the Editor: Got Facebook?" GPSolo 26.2 (2009): 4-5.
Web. 16
Dec. 2014.
Gordon,
Leslie A. "WHY CAN'T WE BE FRIENDS? Having Clients as Facebook Friends Is
Full of Risks—and Rewards." ABA Journal 96.1 (2010): 29-30. Web. 16 Dec.
2014.
Hogan,
Kathleen A. "Why Can't We Be Friends?" Family Advocate 33.2 (2010):
38-39. Web. 16 Dec. 2014.
"How
Social Media Is Used In Divorce Proceedings - West Palm Beach Divorce Attorney
- Family Law South Florida." West Palm Beach Divorce Attorney Family Law
South Florida. N.p., 17 Apr. 2014. Web. 10 Dec. 2014.
Inker,
Monroe L. "Changes in Family Law: A Practitioner's Perspective."
Family Law Quarterly 33.3 (1999): 515-22. JSTOR. Web. 16 Dec. 2014.
Kennedy,
Dennis. "Technology: Saving Face: 5 Tips to Better Security on
Facebook." ABA Journal 96.3 (2010): 32. Web. 16 Dec. 2014.
Sonderby,
Chris. "Fighting Bulk Search Warrants In Court | Facebook Newsroom."
Facebook Newsroom. N.p., 26 June 2014. Web. 15 Dec. 2014.
Tozer,
James. "Husband Dumps His Wife with Online Message in 'world's First
Divorce by Facebook' ." Mail
Online. Associated Newspapers, 9 Feb. 2009. Web. 10 Dec. 2014.
Ullyot, Ted.
"Facebook Releases Data, Including All National Security Requests | Facebook
Newsroom." Facebook Newsroom. N.p., 14 June 2013. Web. 15 Dec. 2014.
West, Jason
W. "Letters to the Editor." ABA Journal 96.5 (2010): 5-6. Web. 16
Dec. 2014.
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