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Electronically Stored Information - The New “Smoking Gun”The new ways in which we communicate in the 21st century have presented our society with a brand new set of challenges that affect all areas of our lives – especially our legal affairs. Where a private investigator may have once spent nights out in the street taking pictures, now the incriminating evidence is voluntarily shared across social networks.

Electronically Stored Information has become the new “smoking gun” of many divorces. 

Case Study: A married couple decides on a divorce. Part of the wife’s argument for why she should have full custody of the children is her husband’s chronic drinking. He claims he has quit drinking. On Facebook, she comes across a picture one of his friends took showing him guzzling beer, dated recently. Additionally, Geo-tracking on the husband’s friend’s phone tagged the picture with his exact location, and it was somewhere he wasn’t supposed to be.

This picture may become evidence to be used in the divorce proceedings.

Attempting to destroy such information by “scrubbing” your social media accounts may be considered destruction of evidence any time after litigation can be reasonably anticipated. In addition to files stored on your computer, electronically-stored information includes information on servers far away – and out of your control – as is the case with Facebook. Closing your Facebook account or removing pictures from your phone doesn’t truly delete the data – it’s still out there, somewhere.

Computer crimes also include accessing data to which a person is not entitled. Breaking into an account using a password – whether or not you know the password or own the computer or device – may be a Class D felony. On the other hand, unprotected information on a shared computer is generally fair game; if the information is publicly shared and thereby publicly accessible, no expectation of privacy exists.

Being careful about what you share electronically is important, even outside the context of divorce. Kids applying for colleges and adults applying for jobs in today’s world find themselves, and their social media profiles, under intense scrutiny. Many employers admit to reading an applicant’s profile as a type of litmus test to determine whether or not they will hire an applicant.

Whether anticipating a divorce or happily married, adult or teenager, my advice is the same: Do not share anything electronically that a potential boss, coworker, friend or judge may someday see and interpret in a way that is unflattering to you. Anything you put out there can come back to haunt you. Think twice – or 3 times – before hitting that “send” or “post” button.  Every few months, review all social media and electronically stored information that may pertain to you. Take a few moments to consider how your social profile may be perceived by others. Do your best to manage your public persona, before you find yourself in a position where a potential employer, business contact or judge takes a look.

Do you have questions about some things you have seen online?