UPDATES IN MICHIGAN FAMILY LAW

Man held in Contempt for Facebook Rant, Ordered to Apologize on Facebook

Mark Byron was angry about a domestic relations court protective order that ordered him to stay away from his wife and affected his custody of his son. So he vented on his personal Facebook page, stating:

". . . if you are an evil, vindictive woman who wants to ruin your husbands life and take your son’s father away from him completely – all you need to do is say that you're scared of your husband or domestic partner...”

When his wife learned of it, her lawyers filed a motion to have him held in contempt for violating the protective order that prevented Byron from doing anything to cause his wife “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.”

Parents Break Age Rule to Help Kids Join Facebook

An article in today's Detroit Free Press points out that even though Facebook has a requirement that  users must be at least thirteen, 55% of parents of 12-year-olds report that their child has a Facebook account. The overwhelming majority of those parents, about 82%, knew when their underage child signed up, and 76% helped create the account. Two concerns occur to me.

One, are these parents knowledgeable enough about computer and image security to keep their children safe from predators? See an earlier blog post, “What's a ‘geotag?’ | To protect yourself and your family, you want to know.” Photos posted on a Facebook page, if not stripped of geotags can give online predators access to your family’s home address, putting everyone at risk.

Facebook | Divorce & Total Recall

Well, Jane Smith, filing for divorce and asking for primary custody—you think you can avoid some of the stupid things you posted on Facebook a year ago? You think it might never see the light of day—those comments about how drunk you got—where you were, with whom, doing what? Guess again! And think about how Facebook will supplement your resume’ as you begin job-hunting. [See this blog article on Lexis-Nexis' use of Facebook in making decisions about whom to hire.]

Last Thursday (December 8, 2011), Facebook began updating Facebook accounts with a new and revamped profile feature called Timeline. Timeline allows a person with access to the account to see a user’s entire history of photos, links and other things shared on Facebook accessible with a single click. 800 million members of Facebook are about to see just how many digital fingerprints they have been leaving on the site — and on the Internet in general. This will make it more difficult to erase past identities, past comments, past bad behavior memorialized in a moment of sheer stupidity.

How To Subpoena Social Media

The Electronic Frontier Foundation,  a donor-funded nonprofit dedicated to defending free speech,    privacy, innovation, and consumer rights online, has been hounding relevant law enforcement agencies to get a hold of documents identifying how the government seeks information from social networking sites and how the sites respond to these requests.

Via an ongoing social networking Freedom of Information Act (FOIA) request, the EFF asked for copies of the social networks’ own guides that they provide to law enforcement giving the “how-to” on how to get information about site users.  EFF pulled guides from thirteen companies, including Facebook, MySpace, AOL, eBay, Ning, Tagged, Craigslist and others. The EFF then compared the guides and organized the data in spreadsheets (xls) and pdf. The guides cover the period from 2005 to 2010 and address requests for contact information, photos, IP logs, friend networks, buying history, and private messages. The EFF wasn’t able to secure Twitter’s guide, but they did their own research and found some relevant information on the site to include on their spreadsheets as well. 

Jeff Zoeller: Wikipedia Cited in Courts Around the World

Jeffrey Zoeller of Witzell & Zoeller, P.C. in Lansing, Michigan, send out to the family law listserv this marvelous link to a Wikipedia page that is "sortable" showing cases around the world in which Wikipedia has been cited as legal authority. He remarked: "I can't keep a straight face." Funny. And of course, Jeff is right. It was the failure to give attribution about which the court complained--not once, but twice.

Jeffrey is a Mac lawyer, and his website is www.virtual-lawyer.net  Addendum: I'm letting Jeffrey, who has a dry and delightful sense of humor, have the last word here: Properly attributed to Escher as "Drawing Hands," he sent the discussion group this "comment" about creating and then disseminating your own authority:

Cyberbullying, Social Media | Impact on Children and Families

Cyberbullying is a major problem in many communities today. As earlier noted on this Blog, bullying can lead to depression and sometimes suicide in teens. Parents are advised by the American Academy of Pediatrics to monitor their children's online behavior. The AAP recommends that parents take a central role in their children's online activities. A recent report published in Pediatrics cites a survey finding that a fifth of teens visit social media sites more than 10 times a day. That report is available below with many more free resources for parents. The AAP recommends that pediatricians:

Google Voice | Features

I'm learning more about Google Voice every day, especially as I anticipate attending the Family Law Section's Winter Conference in Antigua in February. My cellular service is provided by Verizon and I don't want to change because my cell phone coverage is so excellent in my home / office location. However, I cannot get Verizon cellular service in Antigua. Exploring options for long-distance calling (and preparing my presentation for the conference--focusing on some of the tools in "Jeanne's Toolbox"), I reviewed Google Voice again. My interest had been piqued earlier when I learned about recording cell phone calls with Google Voice. With Google Voice, I can make long distance calls for $0.14/minute!

But Google Voice has much, much more to offer.

Reading your spouse's email | A crime? | He said, she said?

A lot of attention is focused these days in family courts around the country on text messages, voice mails, emails, and various social media that spouses use against each other in divorce and custody matters. In fact, protecting yourself from intrusion upon your Internet security has been a frequent topic on this blog. When domestic abuse figures into the picture, the need to be secure in your on-line activities is even more important.

A TODAY Show segment discusses prosecution of a man who says that he used the passwords that his wife shared with him or left open for his discovery and use. She says he's a computer IT person. The unanswered question? Did he access the email because they shared a common family computer setting (like an unlocked file cabinet) or did he use software or hardware to access her email? Here's the Today Show report (Click on the image):

Twitter, LinkedIn, Facebook | Hype or not?

The latest ABA Journal talks about use of social media for lawyers. The journal says that there’s a growing consensus that it is overhyped, arguing that no credible ways to measure return on investment are available and that no data exists showing that social media has the capacity to create business or that the number of followers you have on Twitter or friends on FaceBook means that you are increasing your earning potential.

Facebook | May lawyers ethically "friend" to gather information?

I've earlier written about whether it is ethical for family lawyers to tell their clients to delete or to change their Facebook or My Space pages to avoid damaging information coming into the hands of an about-to-be ex-spouse or opposing counsel. Today I address a separate issue: May a family lawyer use deception or have a paralegal or other third party use deception to "friend" an opposing party or potential witness (a "best friend," a daycare provider, etc.) to gain access to social media pages that are "private" and available only to "friends?"

Cyberbullying | First Amendment | Where does it begin & end?

I've written before about folks who claim that they have a First Amendment right to talk about others--either through telephoning or writing friends, family, employers or by posting to blogs or websites. Earlier posts have concerned the public exposure on blogs, Facebook or other social media of personal and private facts. Sometimes we're talking about invasion of privacy. Sometimes we're talking about cyberbullying or cyber stalking. Today I saw a version of incredible cyberbullying, earlier featured on The Daily Show. As it turns out . . . our tax dollars at work. [Well, not any more.] The headline was: Michigan AG fired for using state resources to attack UMich student body president

ABA journal article | Law firm websites

On October 6th, I wrote about the new ABA ethics opinion concerning website content, disclaimers and the potential effect of communication with website visitors. October's ABA Journal contains an excellent article about Formal Opinion 10-457.

Written by Peter Geraghty, the director of ETHICSearch, the ABA Journal article discusses the Formal Opinion in more detail, especially with respect to which ethics rules apply to content (you know the drill--fair comment that is not misleading).

Beware 'Free Public WiFi'

NPR Radio brought an Internet access problem to my attention last week. If you haven't followed Tom Loeb's warnings to install new security patches, you should check out your computer now.

"Free Public WiFi" is available now--in your airports, your coffee shops and your libraries. It's sort of like the flu virus hanging around shopping carts at the local supermarket. And it acts like a virus, according to NPR.  NPR says that free wireless access does not actually provide access to the Internet. Like a virus, it has spread — and may even be lurking on your computer right now.

Read Larchuk, Travis. "The Zombie Network: Beware 'Free Public WiFi'" on the NPR website (or listen to the segment.  [Accessed October 16, 2010]

Facebook: You can have one for business and one for friends

More than a year ago, I stopped using my Facebook page because I could not separate my social friends from my business networking. The kinds of things friends might post are not always appropriate to a professional profile.

The New York Times recently noted that Facebook has introduced an easier way to make posts and photos visible only to certain groups. Recent criticism about privacy concerns was one thing motivating Facebook. However, this was also a recognition of the need to separate digitally, the way we live at work and life away from the office.

Miller, Claire Cain, The Many Faces of You, NY Times, October 16, 2010

Helft, Miguel, Facebook Lets Users Interact in Small Groups, NY Times, October 6, 2010

Facebook & MySpace | Is it ethical for lawyers tell clients to change, delete?

Richard Gould-Saltman, of the Gould-Saltman Law Offices in Los Angeles, California raised some thought-provoking questions on the ABA Family Law Listserv the other day. He asked:

• Are custody litigants/divorce litigants barred, in states with strong spoliation statutes, from changing any publically accessible aspect of their lives?
• Are they only barred from doing so once opposing counsel has sent some sort of "notice to preserve"?
• If this is the law, is it anything like a good policy? 
• If litigants, particularly custody litigants, realize that they're presenting to the world, and to their children, some image of themselves which, in 20-20 retrospect, is less than stellar, do we want to not only discourage them from fixing it, but punish them, legally, for doing so?
• By analogy, if I learn that my client, before I got involved in the case, routinely went to publically visible custodial exchanges with his ex-wife, wearing a t-shirt which said "Slap the Bitch Up!", am I not allowed to tell him once he's hired me, to stop doing so ?

Lawyers should use care in email with website inquiries

The ABA says: "Websites have become a common means by which lawyers communicate with the public. Lawyers must not include misleading information on websites, must be mindful of the expectations created by the website, and must carefully manage inquiries invited through the website. Websites that invite inquiries may create a prospective client-lawyer relationship under Rule 1.18. Lawyers who respond to website-initiated inquiries about legal services should consider the possibility that Rule 1.18 may apply."

Formation of a binding settlement through E-Mail exchange

Wayne Scheiss has written a terrific article discussing how lawyers should and should not approach the use of email in their practices. The use of email is particularly important to those lawyers who have clients residing in other states in order to facilitate the prompt transmission of documents between lawyers and clients. However, care is needed to ensure that the lawyer makes a good impression [spell check!], ensures privacy and confidentiality, and fully incorporates with specificity all issues that the client needs to resolve, all well-stated in this article.

After reading Scheiss' article, I was prompted to go back and review a 2007 published case involving the formation of a binding settlement through an exchange of emails between counsel for the parties shortly before trial. The points Scheiss makes about using emails as carefully as though you were writing a formal letter or settlement offer are underscored by what transpired in that case involving Kloian (lessor of a building) and Domino's Pizza, L.L.C.

FBI & Facebook | Privacy concerns?

Family law lawyers are always concerned about the evidence obtained from social networking sites negatively impacting their clients' custody and parenting time cases. Greater concerns loom, not only for divorced and divorcing families, but for all people using these sites. The Justice Department released a presentation entitled "Obtaining and Using Evidence from Social Networking Sites." The slides, which were prepared by two lawyers from the agency's Computer Crime and Intellectual Property Section, detail several social media companies' data retention practices and responses to law enforcement requests. The presentation notes that Facebook was “often cooperative with emergency requests” while complaining about Twitter’s short data retention policies and refusal to preserve data without legal process. The presentation also touches on use of social media for undercover operations. The document says evidence from social networking sites can:

What's a "geotag?" | To protect yourself and your family, you want to know

Am I a privacy freak? Yes, without a doubt. I've abandoned the social networking sites folks had recommended as "good for business." You won't see me on Facebook, LinkedIn or Twitter. You won't see casual snapshots of my "kids" (two Siamese sisters) that I took with a smartphone on my blogs or websites. Why not? I read an article about geotags and about how cellphones and digital cameras with built-in GPS can reveal the exact location of where the photo was taken. I had a real wake-up call. Families with children posting to social networking sites need the same wake-up call.

Digital world creates opportunity to air dirty laundry in public

Where is it going to end? We've looked at the Facebook and MySpace paux pas. We've considered other digital issues. Now it's the eBlast. Using special online resources, it is possible to create an email that can be sent to about 150 people per eBlast. (Need more, use another eBlast . . . and another).

Getting rid of ad content on web pages

I owe a debt of gratitude to Elizabeth Sadowski for calling this extremely valuable tool to my attention. Readability allows me to "filter out" all of those pop-ups and other advertising material that I find so annoying on websites. Even websites that are too valuable to disregard have what is for me unacceptable levels of ad content.

Liz says:  "In the words of my hero, Rocket J. Squirrel, 'Now here's something you'll REALLY enjoy.' Readability is a free download that lets you read web articles free of all that commercial junk flashing around the periphery and distracting your concentration from the text. It's like TIVO for your computer. You simply drag the "readability" word to your toolbar and drop it there. Then, whenever you want to read a webpage's text only, just click on the toolbar. If you want to get back to the original webpage, simply refresh the page."

The link to Readability is: http://lab.arc90.com/experiments/readability/
I tried it. I liked it. I am sure you'll find it very helpful. Please consider subscribing to email updates to this blog so that you don't miss any of these tech updates. There is a space to enter your email address in the upper left-hand corner. When you get an update that isn't of interest to you, simply hit the "delete" button.

More about social media and divorce

Sam Hasler writes today on his blog Sam Hasler's Indiana Divorce & Family Law Blog about Facebook indiscretions and other social media issues affecting family lawyers and their clients. You can read it here.

See also a Michigan Lawyer's Weekly by Alex Lundberg, Social web sites becoming new tool for lawyers seeking information, republished here.

Facebook downgrades privacy

The Boston Globe condemns today in its editorial section Facebook's downgrading of privacy. You may read it here.

Facebook privacy | Tech privacy issues & divorce

As earlier posted here, Facebook is becoming a goldmine for family law attorneys. So, the question is:

1)    Are you one of my many family law attorney subscribers / readers who needs to educate your clients about how to minimize their exposure to online material that can prejudice the custody battle, OR
2)    Are you one of the many resourceful laypersons who daily access my Blog who needs to learn more about minimizing your online exposure in social networking sites to avoid prejudicing your custody battle?

In either case, you'll want to see this article, from the New York Times: The New Facebook Privacy Settings: A How To

See also earlier articles about Internet and cellphone security for the divorced and divorcing by [clicking here].

Dating Relationship defined | Text messages & Serial stupidity

Following a trial, the judge entered a final restraining order in favor of plaintiff J.S., based on findings that the parties were in a dating relationship and defendant J.F. made threatens and otherwise harassed plaintiff. The John - the respondent - argued on appeal that since the plaintiff was a dancer in a club he frequented and he was paying for her company, their relationship did not constitute a "dating relationship" within the meaning of the domestic violence statute. Rather, it was a "professional" relationship.

I'm sure the judge was impressed [NOT] when his text messages were introduced into evidence: 

Digital lipstick on the collar?

 According to a New York Times article today:

"Text messages are the new lipstick on the collar, the mislaid credit card bill. Instantaneous and seemingly casual, they can be confirmation of a clandestine affair, a record of the not-so-discreet who sometimes forget that everything digital leaves a footprint.

"This became painfully obvious a week ago when a woman who claims to have had an affair with Tiger Woods told a celebrity publication that he had sent her flirty text messages, some of which were published. It follows on the heels of politicians who ran afoul of text I.Q., including a former Detroit mayor [oh, him!] who went to prison after his steamy text messages to an aide were revealed . . . "

See my earlier post about discovery - how to subpoena ISP providers, phone companies, etc. here.

Lorne Gold did a terrific ICLE seminar recently about Kwame Kilpatrick's test messages and about how family law attorneys can discover and use text messages in a divorce case to prove infidelity, among other things. As for those texting steamy sexually-charged messages? The phrase "serial stupidity" comes to mind . . .

The NY Times article "Text Messages: Digital Lipstick on the Collar" may be read here.

Facebook - Guide to Internet privacy & safety

I've written previously about Internet safety for those in the middle of a divorce or post-divorce difficulties. In particular, I've warned about use of Facebook and MySpace. These social networking websites can offer a wealth of information that might be used against someone who's battling for custody of children or have other issues (such as spousal support) that can be impacted by disclosure of activities.

The New York Times has published a terrific list of ways folks can protect their privacy while using Facebook. I am sure they also apply to sites such as MySpace.

You can read the NY Times article 5 Easy Steps to Stay Safe (and Private!) on Facebook here.

Earlier articles about protecting your privacy when online or using a computer another might have access to (or might have had access to) can be found here.

Disgracebook | Fools names and fools faces . . .

Yesterday we were talking about Facebook and mySpace pages. It amazes me how much personal information people will put up on the Internet for all the world to see. A wonderfully funny website The Disgracebook chronicles people's stupidity on the Web. The caption at the top: " The Disgracebook: Surprise! You just ruined your life with Facebook. Well played. "

Below the photo posted on Facebook is the caption "File under Facebook divorce" and the statement: "A furious fiancee dumped and dubbed her boyfriend "traitor pig" after catching him fondling another girl's boobs on Facebook just days before their wedding."

There is even a space for users to submit their own material.

There are only 8 pages of divorce-related Facebook submissions . . . not quite up to Google standards.

Social networking sites & divorce

Belinda Luscombe writes in the June 22, 2009 issue of Time Magazine "Divorce and Facebook"

"Not long after Patrick told his wife Tammie he wanted a divorce, she posted an angry, hurt note on "the wall," or public-comments section, of his Facebook page. Embarrassed that his colleagues, clients, church friends and family could see evidence of his marital woes, he deleted it and blocked his wife from seeing his page. A couple of days later, the IT worker in  Florida--who asked that his last name not be used in this story — found alarmed messages from two Facebook friends in his inbox. Tammie had used a mutual friend's account to view Patrick's wall and e-mailed several women he had had exchanges with. He says her e-mails were borderline defamatory. She says they merely noted that he was married with children, a fact he had left off his Facebook profile. Either way: Ouch."

Where are the "common decency police" when you really need them?

Should parties make public the messy details about their divorce? In this day of blogs, MySpace and YouTube, this question comes up more often than you'd think.

April 22nd’s New Jersey paper Asbury Park Press contains an article about an attorney, John Paragano, who allegedly posted a video of his estranged wife Diana Prior on a MySpace page. The video, titled, "Superdiva Meltdown," allegedly contained selected portions of a video deposition New York radio personality Prior gave in the parties’ divorce case. Allegedly, the portions posted were selectively chosen to embarrass her and to reveal personal and embarrassing details of her life.

Divorce Wars | Internet public airing of private facts

The Internet gives people a new forum for publicly airing their dirty linen. Tricia Walsh Smith, not your usual British housewife, is publishing personal and embarrassing facts about her marriage and divorce. She's angry that her husband won't offer her more than was agreed upon in a prenuptial agreement. She's not writing a Blog. Instead, she's gone to YouTube.

More about using the Internet safely

Recently, a Michigan family lawyer wrote to ask some very good questions. Her questions and my answers are below. Please note that my answers are generalized, and do not cite to specific laws. The Stored Communications Act referenced below is a federal act. No matter where you reside or practice, you'll also want to consider the laws in your state that govern Internet usage and access.

Electronic evidence used more frequently

Steve Worrall, author of the outstanding Georgia Family Law Blog, has written many posts recently about the increasing frequency with which electronic evidence is being sought and used in court proceedings. A recent blog article entitled Law evolving as divorces drag in electronic evidence, is well worth the time to read, whether you're a family law subscriber to this Blog or a layperson involved in a pending divorce.

Internet safety | Some comments

Some good comments have come from fellow family law practitioners to my post on safe Internet use. One -- and and the emphasis is mine -- from P. Rowland Graff of St. George, Utah says:

I am sure that we will see more of this in the future because computers are so prevalent in today's society. According to the ABA journal online, A West Virginia Attorney will be suspended for two years for hacking his wife's email account at her law office. Does Lawyer’s E-Mail Snooping Merit 2-Year Suspension? http://www.abajournal.com/weekly/does_lawyers_e_mail_snooping_merit_2_year_suspension. According to the article, the husband was able to guess his wife's password.

Many people use passwords that are comprised of easy-to-remember components, such as part of an address or phone number, a child's name, a pet's name. Let's face it: With a little effort, people who know you well can usually guess your password.

Do take seriously the issue of Internet safety. As a general rule, if you have any concerns about the safety of your Internet communications, do not use a home computer.

For fellow lawyers, here's a tip I received from attorney Jeffrey Zoeller of East Lansing, Michigan, who took a proactive approach to the potential for Internet surveillance:

Safe Internet use | For those divorcing

Whether you are researching the Internet while doing pre-divorce planning, in a relationship with an abuser, or discussing divorce strategy with your lawyer or a friend, you need to take precautions ro avoid exposing your plans and strategies to your spouse or abuser. Otherwise, you risk danger of injury by an abuser or interference with the settlement of custody, parenting time, or property issues.

One of the first things I ask a new client is: "Does your spouse know your email account password?"

The communications you have with your divorce lawyer are intended to be confidential. This is particularly important when you and your lawyer are doing strategic planning. And nowadays, client-lawyer communications often occur via email, as they do with my practice when my clients live far from my office.

The following are some tips for using email and the Internet safely and securely, while preventing your spouse from reading your email or seeing what informational websites you access online:

Divorce Wars & Invasion of Privacy

Yesterday, I wrote about one husband's malicious rant on the Internet. William Krasnansky has published a blog, http://lookatmypugs.livejournal.com/ in which he reveals the most intimate (and often the most petty) information about his seven (or so) year marriage. His diatribe is obviously intended to get even with his wife who, he says, "Runnoft" and left him. [NOTE: Krasnansky eventually deleted (or made non-public) this material. More about that later.]

The man apparently has a Mensa membership, but whoa . . . who could read his blog and think him to be a "smart person?"  In the meantime, the judge has ordered him to remove "any and all Internet postings" about his wife. The ex parte order is challenged as unconstitutional--as an infringement upon his First Amendment right to freedom of speech.

Divorce Wars | Blogs, free speech & getting even

Perhaps you remember the strange case of Dr. Bartha. He's the guy who blew up an historic building in New York City after a divorce court ordered him to sell the building and split the net sale proceeds with his former wife. He had claimed the building as his separate property. His point, I suppose, was "If I can't have it, then neither can you."  I wrote about it here in "Bizarre end to separate property dispute."

Another bizarre case is pending in Vermont where William Krasnansky publishes a Blog found at http://lookatmypugs.livejournal.com/. Mr. Krasnansky's wife "Runnoft" (according to him), leaving him, the two pugs, and the cat. Unfortunately, she also left behind -- Uh Oh -- about seven years' worth of journals, portions of which he has been selectively publishing online. [NOTE: Ignore the barking dogs.]

Despite an ex parte court order issued Dec. 7, 2007 that orders him to take down "any and all Internet postings" about his wife or their marriage, Mr. Krasnansky has refused to take down his blog. He states that leaving the Blog up is “a deliberate act of civil disobedience.”