Judge Orders Divorcing Couple To Swap Facebook And Dating Site Passwords, Breaking Facebook's Own Rules

from the this-makes-no-sense dept

This is a bit odd. Apparently, a judge has ordered a divorcing couple to share each other's Facebook and dating site passwords with each other, as part of the discovery process for the divorce proceedings. As Kash Hill at Forbes notes in writing about this (link above):
In “normal” discovery, a litigant is usually asked to turn over “responsive material” not the keys to access all that material and more...
I honestly can't figure out why that "normal" route wouldn't make sense here. Why require full access to each others' accounts? As Hill also notes, this certainly violates Facebook's terms of service, and it seems odd that a judge would require users to violate the terms of service. It also seems strange since having such access can lead to additional mayhem as well. Beyond just accessing all sorts of content that may not even be relevant for the case, what happens if one of them contacts someone else using the other's account. It just seems to go way beyond what makes sense.


Reader Comments (rss)

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  1. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Nov 15th, 2011 @ 2:07pm

    but... but... SOPA!

    Come on Mike, that's two non-SOPA posts. You are slipping!

     

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  2.  
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    Bobby, Nov 15th, 2011 @ 2:11pm

    According to Justice

    According to the Justice Department, that judge has just ordered those two to break the law.

     

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  3.  
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    Kush (profile), Nov 15th, 2011 @ 2:14pm

    This is what happens when the Judicial branch doesn't understand the interwebs

    This is what happens when someone who most likely doesn't understand technology makes rulings about technology. This would be akin to the same Judge making a medical ruling without understanding medicine, oh wait...

     

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  4.  
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    Anonymous Coward, Nov 15th, 2011 @ 2:18pm

    Isn't a marriage a "shared" thing? Wouldn't those accounts be, directly or indirectly, "jointly and severally" held?

     

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  5.  
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    Anonymous Coward, Nov 15th, 2011 @ 2:19pm

    Old people and computers, hilarious!

     

    reply to this | link to this | view in thread ]

  6.  
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    Mark, Nov 15th, 2011 @ 2:23pm

    Re: According to Justice

     

    reply to this | link to this | view in thread ]

  7.  
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    The Groove Tiger (profile), Nov 15th, 2011 @ 2:31pm

    Re:

    Yawn.
    Blog posts something non-SOPA related. Call the police.

    Yawn.
    Blog posts something SOPA related. Call the president.

    Yawn.
    Commenter spreads FUD. Call the Special Olympics.

     

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  8.  
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    The Groove Tiger (profile), Nov 15th, 2011 @ 2:32pm

    Re:

    Prick. Prickity prickity prick.

     

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  9.  
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    Anonymous Coward, Nov 15th, 2011 @ 2:36pm

    But if violating the TOS is a crime...

     

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  10.  
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    Anonymous Coward, Nov 15th, 2011 @ 2:41pm

    Re: This is what happens when the Judicial branch doesn't understand the interwebs

    This is what happens when change comes, it needs some time for the old to die and the new to take over it.

    But we do have a problem today, because the pace of innovation is faster than it was ever before.

    Those old institutions are not capable of attracting and training people fast enough and worst they are not capable of seeing who are capable or not, they are not able to recycle people to the new forms and part of that is our own fault, it would be cruel to just throw out somebody because after several years of good service, we need a system that can take care of people but is able to identify who is more capable and able to do some job at a faster pace, something like a video game score board but for the legal system, but how do we give points to working people on subjects that are often so abstract that any decision could be never be right or wrong, but just feel wrong or right?

     

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  11.  
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    Scote, Nov 15th, 2011 @ 2:46pm

    Discovery routinely violates the law

    Quite. If they actually use the passwords they'll be felons according to Justice.

    However, it is routine for judges to order legal violations during discover. Imaging entire hard drives, as is done in RIAA copyright cases, is wholesale copyright infringement--copying not just evidence but also computer programs, videos, music, text, etc,, all without authorization from all of the requisite copyright holders.

     

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  12.  
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    TimothyAWiseman (profile), Nov 15th, 2011 @ 2:48pm

    Re:

    I am not a lawyer, but to be clear the "joint and several" normally comes up in torts in determining who is (or can be) liable, not in regards to who holds positive assets.

    Family law is governed on a state by state basis, so there is some variation, but generaly assets that are held by both parties may be described as "marital" or "communal" or in some cases (mostly regarding land) as "joint tenancy with right of survivorship."

    Most jurisdictions do allow certain types of properties which are acquired in certain ways to be held separately and to never become marital assets. Nevada for instance will allow inherited assets which are carefully kept separate from the marital assets to be treated as the sole property of one party or the other.

    As to whether a facebook account could be viewed as a marital asset, I suspect (again I am not a lawyer, and I think this would not be an area of settled law anyway) that the answer would NORMALLY be no. The first thing is that many courts are likely to not view a normal facebook account as property at all. It is rather access to a service granted entirely at the suffrance of company. It would be more akin to a PO Box rented month to month.

    Even were it to be viewed as property, depending on the jurisdiction there is a reasonable chance it would be viewed as solely belonging to the account holder. Facebooks TOS implies that a personal account is to be held by a person, and it is integrally linked with an individual.

    There may be exceptions for product pages or corporate pages which may truly have economic value and might very well be marital property if say one spouse was the sole proprietor of a company started after the marriage. But an average individual account would probably not be viewed as an asset at all and probably wouldn't be viewed as a marital asset if determined to be an asset.

     

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    Chris Hoeschen (profile), Nov 15th, 2011 @ 2:57pm

    Then the same judge gets the trail of State vs Courtney Gallion in the charges of violating the CFAA by accessing her now divorced husband's Facebook account.

     

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  14.  
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    Anonymous Coward, Nov 15th, 2011 @ 2:58pm

    Re: According to Justice

    Not just "break the law," but commit a felony.

     

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  15.  
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    STJ, Nov 15th, 2011 @ 4:28pm

    Isn't this going to be illegal?

    Didn't this site have a story earlier today where there was going to be a law passed to make it a felony to violate the TOS? Does that mean that judges can make exceptions or that the people are just SOL either way they go?

     

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  16.  
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    Anonymous Coward, Nov 15th, 2011 @ 8:10pm

    Re:

    Of course not. If creditors come after my wife, my accounts are safe because she entered into a contractual agreement with them. Same with social networks. My wife joins a site, agrees to the TOS, and that's her account. I have no "right" to it.

     

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  17.  
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    Jeffrey Nonken (profile), Nov 15th, 2011 @ 11:53pm

    Re:

    Get off my lawn!

     

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  18.  
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    Anonymous Coward, Nov 16th, 2011 @ 5:58am

    Re: Re:

    This. My wife and I own some assets jointly, but not everything is held jointly just because you get married.

     

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  19.  
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    TimothyAWiseman (profile), Nov 16th, 2011 @ 11:05am

    Re: Re:

    I am not a lawyer, and it depends on the jurisdiction and the details, but this is not always true.

    Depending on jurisdiction, there are ways to make sure certain types of assets (and debts) are tied solely to one person or the other. But by default assets and debts after marriage are marital, and can apply equally to both parties. A creditor of a debt acquired after marriage is normally free to go after marital assets to satisfy the debt.

    In Nevada as an example, assume one spouse has no income, but the other spouse has an income above the poverty level. If the spouse without income defaults, a creditor may first secure a judgment against the debt and then request a writ of execution to garnish the other spouses income, but at a reduced monthly rate of what they could garnish the debtor's income.

    My wife, for instance, now has a job. But for a long time she didn't, and she still got credit cards in her name without my involvement without any problem because the creditors knew she was backed by my income.

     

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  20.  
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    NLMJ, Nov 16th, 2011 @ 11:22am

    Don't these people know that you can download a full copy of your Facebook data? Swap that, and you'll have a legal exchange. (Never minding the overreaching/overbroad nonsense, of course.)

     

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  21.  
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    NLMJ, Nov 16th, 2011 @ 11:22am

    Don't these people know that you can download a full copy of your Facebook data? Swap that, and you'll have a legal exchange. (Never minding the overreaching/overbroad nonsense, of course.)

     

    reply to this | link to this | view in thread ]

  22.  
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    D.Applegate, Dec 22nd, 2013 @ 12:04am

    Consistent with the Justice Department, that judge has recently requested those two to transgress against the law.

     

    reply to this | link to this | view in thread ]


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