We’ve seen employees fired over Facebook postings and photos, a judge grant permission to an opposing party to dig into private Facebook postings in a personal injury lawsuit, and another judge force a juror to reveal Facebook status updates, but this one is certainly a different twist: a Connecticut judge has ordered a divorcing couple to exchange their passwords for Facebook and dating webites.
Stephen and Courtney Gallion are going through divorce proceedings, which will also include the awarding of custody of their children. According to Forbes, when Stephen clicked on his wife’s Facebook profile, he found information he felt would help his case — and wondered if she hadn’t been posting other items that could help him. So he told his lawyer.
At Courtney’s deposition, Stephen’s lawyer asked Courtney for her passwords; at first she refused, but then, on advice of counsel, turned them over. Perhaps Courtney’s lawyer didn’t want to get in a legal battle over that issue since the parties were already in a contested divorce, but there doesn’t seem to be any legal basis or obligation that would require Courtney’s turning over her passwords without a court order.
Immediately after turning over her passwords, though, Courtney got in touch with a friend to change her passwords and do some selective editing.
At that point, Judge Kenneth Shluger ordered the attorneys to exchange “their client’s Facebook and dating website passwords” in order to facilitate discovery. The parties were also ordered not to delete information from their accounts or to go on each other’s sites posing as the other.
Yes, that’s a court order for no online hijinks.
Kashmir Hill at Forbes called the judge’s order “court-authorized hacking,” and that characterization is difficult to argue with. Requiring a party to turn over access to entire online accounts seems a far reach; Facebook, for example, has not only profile information, for which a user can set viewing privileges, but also chat and inbox (incoming and outgoing) messages — and some of that stored information may date back years, potentially well beyond the scope of a given legal action.
Although status updates set to be viewable by the public carry no expectation of privacy, what about those private communications between individuals?
Here we’re dealing with a divorce action, but would the exchange of passwords also be appropriate in personal injury suits? Only if the parties knew each other? And what about general email accounts? Is the expectation of privacy high enough in those to weigh against password disclosure?
If an order like this isn’t a violation of one’s privacy, it rides that line closely. And speaking of privacy — Hill notes that the court order violates Facebook’s own terms of service, which prohibits users from giving their passwords to anyone.
Of course with all the problems Facebook has had concerning privacy over the years, the company will probably choose to stay out of this one. But the rest of us are again reminded that online activity is anything but private.
What do you think? Is it a violation of privacy to require divorcing couples to turn over their social media passwords?