Monday, June 15, 2009
Taking the time to address the use of electronic data in divorce in our classes and clinics is becoming increasingly important. A recent survey of American Academy of Matrimonial Lawyers members indicated that 88% had noted an increase in the use of this evidence. Last week's Time's article on Facebook and Divorce comments that "...as the age of online-social-network users creeps up, it overlaps more with the age of divorce-lawyer users, resulting in the kind of semipublic laundry-airing that can turn aggrieved spouses into enraged ones and friends into embarrassed spectators." The article includes a slideshow of five facebook "no-nos for divorcing couples."
Students may not appreciate the extent to which the use of this type of evidence may raise difficult ethical and legal issues. A brief analysis of the issues is available online from The Legal Intelligencer. Recent scholarship on the issues includes:
Laura W. Morgan, "Marital Cybertorts: The Limits Of Privacy In The Family Computer," 20 Journal of the American Academy of Matrimonial Lawyers 231 (2007).
For an older, but comprehensive review of the law in this area, see Richard Turkington,Legal Protection for Conversational and Communication Privacy in Family, Marriage and Domestic Disputes: An Examination Federal and State Wiretap and Stored Communications Acts and the Common Law Privacy Intrusion Tort, 82 Neb. L. Rev. 693, 702 (2004).
For a discussion of the marital communications privilege when spouses talk by email, see Mikah Thompson, Twenty-First Century Pillow-Talk: Applicability of the Marital Communications Privilege to Electronic Mail, 58 Santa Clara Law Review 275 (2006).
Finally, for a lesson on how not to ask students about this topic: see this law student's blog posting responding to a family law prof's quiz question regarding awareness of the implications of social networking on family law litigation.