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Judge Makes Divorcing Couple Swap Facebook Passwords

Soulskill posted more than 2 years ago | from the be-careful-whom-you-poke dept.

Facebook 332

PolygamousRanchKid writes with news of a recent court order during divorce proceedings: both parties must give their social networking passwords to the other, so that each side can snoop for evidence. From the article: "Everyone knows that evidence from social networking sites comes in handy for lawsuits and divorces. Attorneys usually get that material by visiting someone’s page or asking that they turn over evidence from their page, not by signing into their accounts. But judges are sometimes forcing litigants to hand over the passwords to their Facebook accounts. Should they be? What was the reason behind the court-authorized hacking in the Gallion case? ... While all may be ‘fair’ in love and war (and personal injuries), password exchanges like this are not kosher according to Facebook’s terms of service. I wonder if Judge Shluger is aware that his order violates Facebook’s TOS, which require that users not hand over their passwords to anyone else. Shluger did, at least, try to limit the privacy invasiveness of his order by telling the parties not to prank each other. 'Neither party shall visit the website of the other’s social network and post messages purporting to be the other,' he included in the order."

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Take the Facebook Password (1)

TechyImmigrant (175943) | more than 2 years ago | (#38035566)

Go on, take the Facebook password, but if anyone touches my Linked In password, there will be trouble,

Re:Take the Facebook Password (1, Insightful)

Anonymous Coward | more than 2 years ago | (#38035656)

You disgust me . Only the worst sort of people not only fall for the scam but love it.. Dragging the rest of us with you whenever we have to apply for work.

Re:Take the Facebook Password (2)

Z00L00K (682162) | more than 2 years ago | (#38035928)

And by violating TOS - the accounts shall be killed and erased. Problem solved.

"hacking" (1)

khallow (566160) | more than 2 years ago | (#38035574)

What was the reason behind the court-authorized hacking in the Gallion case?

So I can "hack" my buddy's game account by asking him for the account/password? Wow, this social engineering is getting pretty ingenious. I bet the judge humps corpses in those eff pee ess games too.

Re:"hacking" (1, Funny)

masternerdguy (2468142) | more than 2 years ago | (#38035654)

Teabagging is a time honored tradition of victory in the FPS world. It is based on an ancient and deep symbolism practiced by warriors since antiquity.

Re:"hacking" (3, Funny)

Anonymous Coward | more than 2 years ago | (#38035886)

It's also the cited by the UN as the preferred resolution of diplomatic process when there are accusations of noob faggotry between two peoples.

It not only feels good, it's the law.

Terms of Service (5, Informative)

CmdrPony (2505686) | more than 2 years ago | (#38035588)

I wonder if Judge Shluger is aware that his order violates Facebook’s TOS

Why the hell would he care?

Re:Terms of Service (5, Insightful)

broken_chaos (1188549) | more than 2 years ago | (#38035616)

Since one party just has to inform Facebook to (probably) get both accounts shut down, locking away any 'evidence', as long as it's done quick enough.

Re:Terms of Service (1)

CmdrPony (2505686) | more than 2 years ago | (#38035700)

But Facebook isn't obligated to do anything. I highly doubt a "I shared my password with my husband" will make FB delete the account.

Re:Terms of Service (1)

Mitsoid (837831) | more than 2 years ago | (#38035732)

They are not obligated to keep the accounts open due to the court order either, so facebook might close the accounts to avoid being dragged into publicity --- of course, the TOS being the reasoning (which arguably wouldn't even need to be called on since they are a private business)

Re:Terms of Service (2)

jklovanc (1603149) | more than 2 years ago | (#38036024)

Actually they are required to follow a court order just like any other business. Deleting an account could be equated to shredding documents. Facebook could be charged with failure to comply with a court order and destruction of evidence.

Re:Terms of Service (3, Informative)

CmdrPony (2505686) | more than 2 years ago | (#38036130)

The court order isn't directed or served to Facebook.

Re:Terms of Service (1)

netsharc (195805) | more than 2 years ago | (#38035806)

Presumably there's an automated button somewhere to tell Facebook "I believe a third party knows my password" (which will be true) and a script will automatically change the password, and send a reset code to your e-mail address. Now is e-mail still sacred? If so, then the judge/the soon-to-be-ex can't touch that reset code, problem sort of solved...

Re:Terms of Service (1)

Anonymous Coward | more than 2 years ago | (#38035716)

Actually, that would be even more illegal for Facebook.
That would be a case of hiding evidence.
Plus, you are talking about Facebook here. They happily hand over your information to law, people pretending to be law, stalkers and advertisers.

The Judge order overrules Facebook ToS.
And considering they are in a legal pairing, Facebook ToS has no position to disallow sharing of passwords.

Re:Terms of Service (1)

MurukeshM (1901690) | more than 2 years ago | (#38035816)

But how do we know there's evidence that could have been hidden or destroyed unless fb lets us look?
And does legal pairing imply that they share intellectual property too, like physical property and wealth? Not that I like the idea of IP.

Re:Terms of Service (0)

Anonymous Coward | more than 2 years ago | (#38036200)

Ignorant question: does facebook have any sort of history function? If you delete something from your page can you go back and see it, or is it only facebook that has access to the history? If not then how can you ever know, and does this give the more technical savvy person an advantage in this relationship?

Re:Terms of Service (1)

chrb (1083577) | more than 2 years ago | (#38035720)

I doubt Facebook would close an account just because some random person emails them saying that the owner of said account broke their Terms Of Service. Also Facebook might face some legal problems if they deleted the account when they had knowledge that it was subject to a court order. Imagine the non-internet scenario: you are facing divorce, so you store some documents relevant to the legal proceedings with a lawyer for safe keeping. Your spouse's attorney knows of the existence of the documents, requests them during discovery, the judge agrees they are relevant and orders you to provide access to them. I suspect the court would not look kindly on the actions of your lawyer if, finding out about this, he then destroyed (or disabled access to) the documents due to a violation of his "Terms of Service".

Re:Terms of Service (1)

jklovanc (1603149) | more than 2 years ago | (#38036004)

Sorry but TOS does not trump a court order. If one or both of the accounts were shut down the court could order them restored and made accessible again.

Re:Terms of Service (0)

Anonymous Coward | more than 2 years ago | (#38036046)

YANAL

What makes you think that a court order dealing with two third-parties has any hold over what Facebook does with it's property?

Re:Terms of Service (0)

Anonymous Coward | more than 2 years ago | (#38035630)

I wonder if Judge Shluger is aware that his order violates Facebook’s TOS

Why the hell would he care?

Yeah, like the TOS supersedes a judge's orders.

Hey, maybe we try that! Create a website that has speeding, smoking pot, and drinking as part of the TOS and when you're busted, just say "Sorry Judge! The TOS of this website I subscribe to says that I have to."

Judge: "Charges dismissed because activity is ordered in TOS."

That's assuming the submitter is the judge.

Re:Terms of Service (1)

Gaygirlie (1657131) | more than 2 years ago | (#38035638)

Well, he is only ordering the couple to brake the TOS, he isn't giving any order to Facebook itself. So now the wife can give the password to the husband, then call Facebook that she has broken the TOS and request her account to be removed. Then just wait for this thing to be over with and create a new account.

Re:Terms of Service (-1)

Anonymous Coward | more than 2 years ago | (#38035754)

Sup girl? Props on being gay. That's great. Bet it gets you lots of +1 mods from lonely autist neckbeards.

I think you meant to say "break" instead of "brake" as those are two separate words with very different meanings. Unless you meant to say that TOS is a vehicle and that we should apply some brakes to stop its movement? That'd be cool. I'd love to take you and your muff-diving lipstick lesbian girlfriend on a hot date in a shiny red TOS. Or if you really meant to say "break" and TOS isn't a new car that we can have a three-way in, how about we all take a ride in my mom's Kia Rio to the local Barnes & Noble? We can get a latte and a dictionary and then discuss the finger points of cunnilingus and painal.

Let me know if you're into this. Thanks.

Re:Terms of Service (0)

Anonymous Coward | more than 2 years ago | (#38035938)

I just want to say that YOUR post gets a lot of +1 mods from THIS lonely autist neckbeard.

Re:Terms of Service (1)

jklovanc (1603149) | more than 2 years ago | (#38036048)

And the court could issue another order to Facebook to restore the account and keep it up until the case is over. Things do not disappear instantly from the internet; there are always backups.

Re:Terms of Service (1)

BitZtream (692029) | more than 2 years ago | (#38036076)

And the court will follow up with an order compelling facebook to make the data available to the court, oh, and they don't actually give a fuck about your account, thats just an excuse to use as an option to turn people off as needed.

Its cute how you think you're going to out smart the legal system because of some silly ToS. You do realize the law tramps anything in Facebook's retarded ToS, right?

Re:Terms of Service (4, Insightful)

Calibax (151875) | more than 2 years ago | (#38035706)

oh, I don't know. Perhaps because each of the parties agreed to a contract with Facebook, and he's ordering them to break that contract - when Facebook isn't even a party to the case.

In this case it's no big deal at all. But a judicial order that involves deliberately breaking two contracts that were agreed with an uninvolved third party is not exactly what you'd expect to see. Maybe that's normal in divorce courts, no experience there.

Re:Terms of Service (2, Funny)

Anonymous Coward | more than 2 years ago | (#38035980)

Why is it that every would-be lawyer who's watched 3 or more episodes of Law & Order thinks that his legal insights about contract law are brilliant and worth sharing?

I bet the lawyers for both parties haven't even considered this line of reasoning, and wouldn't have used it on appeal if you hadn't brought it up here. I bet they didn't even use it when arguing about this order in front of the judge in the first place!

It's a good thing Slashdot has so many bar-qualified lawyers willing to do some monday morning quarterbacking for those clearly-incompetent boobs involved in the cases reported on here.

Re:Terms of Service (5, Insightful)

perlchild (582235) | more than 2 years ago | (#38035748)

The judge might not care that it's Facebook's TOS, he should care however, that he's asking for the worse possible way to get what he wants.

Having the court order facebook to give both parties the information for both accounts is the right, "least abusable" way to go about this.

Ordering people to give over a password to someone they despise, when the only POINT of the password is that it's not known to anyone else is ludicrous.

Thinking that the only damage they can do is limited to the pranks he ordered them not to do is criminally misinformed.

The law in many countries state "ignorance of the law is no defense".

It should have a matching "no judge may be ignorant of the nature of the things he orders about.

Re:Terms of Service (1)

Bogtha (906264) | more than 2 years ago | (#38035900)

Having the court order facebook to give both parties the information for both accounts is the right, "least abusable" way to go about this.

There are two other ways he could have gone about it - it's possible to create Facebook applications with read-only access. It's also possible to export your data from Facebook.

Also, if I were a friend of only one of these people and I used Facebook's privacy controls to share things with my friends only, this judge would be forcing my friend to violate my privacy by sharing these things with somebody who was not my friend. This is broken in so many ways.

Re:Terms of Service (1)

geekmux (1040042) | more than 2 years ago | (#38035974)

I wonder if Judge Shluger is aware that his order violates Facebook’s TOS

Why the hell would he care?

Gee, I don't know...how about the fact that he's a judge and SHOULD know if what he's handing down as a court order violates anything...the fact that he's presiding over one of the most common events that take place in courtrooms today...the fact that actions like this will set precedent in damn near every single future court case involving two people who are divorcing who happen to have Facebook accounts(that would be just about EVERYONE)...dunno, those seem like pretty damn good reasons to me.

He's treading on thin ice with this one. What's next, swapping bank account info? And if the two laymen involved in a divorce case are basically being tasked to "snoop" on the other and find out every bit of information, then what the hell is anyone paying a highly educated divorce attorney for...

Re:Terms of Service (3, Insightful)

BitZtream (692029) | more than 2 years ago | (#38036198)

Gee, I don't know...how about the fact that he's a judge and SHOULD know if what he's handing down as a court order violates anything

Its cute how you think a ToS is something someone somewhere cares about. Its not law, its not even a binding contract. The judge doesn't care about the Facebook ToS because he overrides it.

Companies don't get to override the law, no contract (in America) part can be held binding if it is against the law. Look up how slavery was outlawed as written into law.

the fact that actions like this will set precedent

Setting precedent requires you to be the first to do it. He isn't. Not even close. This is just a continuation of typical divorce proceedings and Facebook is just one more thing in the loop. Judges have been ordering divorcing couples to share info for thousands(?) of years, Facebook's silly little ToS doesn't override common sense, practicality, or most importantly in this case, the law.

He's treading on thin ice with this one. What's next, swapping bank account info?

Already pretty much standard practice in a divorce case so both sides lawyers can figure out which one is paying for everything. Who owes how much child support or alimony. Which by the way, that information in most cases is legally obtainable by the other one because you are married. You shouldn't have gotten married to someone you didn't plan on sharing everything with. You're legally bound to do so at this point, just like they are also legally bound for certain mistakes you make.

And if the two laymen involved in a divorce case are basically being tasked to "snoop" on the other and find out every bit of information, then what the hell is anyone paying a highly educated divorce attorney for...

The divorce attorney is acting on behalf of the people getting divorced. The judge doesn't ever tell the lawyer to do anything, he tells the litigants to do shit, and the lawyers do it on their behalf. If you want the lawyer to do the snooping, then you can pay him to do so.

If you didn't want to end up with your soon to be ex-wife/husband having access to your Facebook account during the divorce then you might want to consider who you marry, not expect the courts to protect you. When you got married you agreed that BY LAW for MANY PURPOSES that there is no YOU, only US, and this is one of the consequences of your choice. Don't get married if the risk is something you're not willing to take. Its not the courts job to fix your bad life choices.

I'm fairly certain you have absolutely no idea what so ever about anything related to divorce or legal proceedings in general. Its really scary how little you know about how your country works.

Re:Terms of Service (0)

Anonymous Coward | more than 2 years ago | (#38035984)

Thankfully corporate TOS don't have the force of law *yet*.

divorce (5, Insightful)

nomadic (141991) | more than 2 years ago | (#38035600)

In my opinion anytime someone enters into contested divorces they should be assigned a guardian by the court with full power of attorney and the ability to have the person they represent temporarily institutionalized until the divorce is finalized. People who get divorced and have any sort of adversarial proceedings typically turn into raving lunatics who are dangers to society.

Re:divorce (3, Insightful)

Knave75 (894961) | more than 2 years ago | (#38035628)

Well, I will probably looking at a divorce in a year's time or so, and if I was ordered to turn over my facebook password my very first action would be to delete my profile.

Re:divorce (3, Informative)

Nailer235 (1822054) | more than 2 years ago | (#38035666)

Well, I will probably looking at a divorce in a year's time or so, and if I was ordered to turn over my facebook password my very first action would be to delete my profile.

Then you would potentially face penalties for spoilation of evidence in which case you could potentially face imprisonment and a jury would be permitted to "assume the worst." Good job. (Note: I am NOT a lawyer and I am NOT offering legal advice)

Re:divorce (5, Funny)

jpapon (1877296) | more than 2 years ago | (#38035718)

Spoilation of evidence? Is that when you give away the ending of a cop drama?

Spoilation alert!

Re:divorce (1)

Anonymous Coward | more than 2 years ago | (#38035814)

I hope you are being facetious.

http://en.wikipedia.org/wiki/Spoliation_of_evidence

Do not annoy the judge. If you do, he/she may directly sanction you. Or you may simply lose the case in every possibly way to the maximum possible extent.

Re:divorce (2)

Knave75 (894961) | more than 2 years ago | (#38035750)

Did the order state that I also lose control over my account? My understanding is that users can delete their account at any time, is that not correct? (Luckily, I suspect it will not be a contested divorce, so I won't have this issue, but imprisoning me over deleting my facebook account seems to be... harsh.)

Re:divorce (4, Informative)

nomadic (141991) | more than 2 years ago | (#38035776)

They wouldn't throw you in jail but you could face sanctions for doing it. Word of advice for dealing with judges, do NOT try to pick holes in their orders like that.

Re:divorce (1)

dcollins (135727) | more than 2 years ago | (#38035908)

Prediction: You will have one helluva hard time in your divorce. Just sayin'.

Re:divorce (1)

Ihmhi (1206036) | more than 2 years ago | (#38035932)

but imprisoning me over deleting my facebook account seems to be... harsh.)

Despite the fact that they were once lawyers, judges have emerged from their Armani cocoons as something vaguely resembling a human. Humans can be petty.

Re:divorce (1)

Americano (920576) | more than 2 years ago | (#38036026)

If you deleted your account before the order was given, you'd probably get away with it. But if the judge ordered you to give the password, and you went home and deleted your account and then said, "HA, sorry, here's my password, I DELETED MY ACCOUNT SUCKERS," you'd piss off the judge, probably end up in contempt of court, and surely would be on the losing end of any further ruling the judge makes.

If you think giving up your facebook password is bad, just imagine how much more painful giving up the legal maximum in child support, child custody, assets, and everything else in the settlement would be. Comply with the order, you might end up with a fairly equitable divorce; defy the order, and you can bet the judge will side with your soon-to-be-ex everywhere he can, in addition to slapping you with sanctions for contempt of court.

Re:divorce (5, Insightful)

rtaylor (70602) | more than 2 years ago | (#38035730)

You need to delete the account before being required to turn over the account.

Even better if you do it before the divorce is filed.

Re:divorce (1)

Anonymous Coward | more than 2 years ago | (#38035772)

Even if you delete your account, all your spouse would have to do is have his/her attorney subpoena the records from Facebook. Although you delete your account, your information is still retained.

Re:divorce (2)

ClintJCL (264898) | more than 2 years ago | (#38035734)

At that point you would probably be held in contempt of court for destroying evidence, and/or the fact that you deleted it would basically make you lose credibility, causing unproven assertions to be that much more likely to be believed.

Re:divorce (1)

nomadic (141991) | more than 2 years ago | (#38035926)

Yep, spoliation of evidence is taken seriously by judges; a common sanction is for the judge to make an adverse inference based on the information lost, with the idea that you deleted it because you were hiding something.

Re:divorce (3, Informative)

eudas (192703) | more than 2 years ago | (#38035736)

1) You should probably delete your profile ahead of time, then.
2) I'm pretty sure that if you took the action to "delete your profile" with such a short turnaround time, then the spouse's login to your FB account would undo the "delete" action, anyway. Logging in to a FB account during the "deletion waiting period" cancels the deletion.

Re:divorce (1)

allo (1728082) | more than 2 years ago | (#38035942)

Bad Luck. Facebook deletes the profile 2 weeks later, until then it can be recovered.

Re:divorce (1)

geekmux (1040042) | more than 2 years ago | (#38035988)

Well, I will probably looking at a divorce in a year's time or so, and if I was ordered to turn over my facebook password my very first action would be to delete my profile.

Er, "delete"? On Facebook?

You must be new here.

Re:divorce (1)

Hentes (2461350) | more than 2 years ago | (#38036030)

Even then, your data won't be deleted.

Re:divorce (1)

khallow (566160) | more than 2 years ago | (#38036084)

So delete it now and avoid the hassle. The judge won't mind giving you jail time for doing really stupid stuff like that.

Re:divorce (1)

khallow (566160) | more than 2 years ago | (#38036180)

Ok, looks like I'm wrong about the jail time (from reading other posters), but it's still a bad idea.

If evidence is found by swapping passwords... (2)

lsolano (398432) | more than 2 years ago | (#38035618)

The cheater must be sentenced for being stupid, not for being unfaithful.

How can someone use his/her facebook/email account for cheat instead of creating a fake one?

Re:If evidence is found by swapping passwords... (5, Interesting)

Anonymous Coward | more than 2 years ago | (#38035762)

Pretty easily, actually. People actually believe their "private" messages are private. Plus, friending someone on Facebook is something you do even before trading phone numbers these days, so you're going to get their real account if you meet them in real life in any sort of work/school related capacity.

When I was in college (only a couple of years ago), I met a girl a couple of years younger who was in a history class I was taking to fill up some requirements. She had a fiance, but he didn't pay her enough attention and bored her, so she was looking for action on the side. Some of the steamiest messages I've ever seen on a computer screen, all via her real Facebook account. She married the guy later and still has the account. The messages are at least still in my inbox on Facebook, so I assume they're still in hers too.

Judge Shluger's order violates Facebookâ(TM)s (1)

Maow (620678) | more than 2 years ago | (#38035622)

I wonder if Judge Shluger is aware that his order violates Facebookâ(TM)s TOS, which require that users not hand over their passwords to anyone else.

I think a court order trumps FB's TOS, so I doubt he cares.

And would we want it any other way, such as a corporate TOS overriding a court? I think not.

Re:Judge Shluger's order violates Facebookâ(T (1)

jpapon (1877296) | more than 2 years ago | (#38035758)

That doesn't mean Facebook is obligated to keep the accounts active... Unless of course the judge issues a warrant/subpoena.

Re:Judge Shluger's order violates Facebookâ(T (1)

Mitsoid (837831) | more than 2 years ago | (#38035808)

I think the difference is... I'm not sure the judge can order fb to keep accounts open --- FB could be ordered to provide information... But fb still should be allowed to close/lock accounts that are violating their business practice...

if it were a fault of the business sure... But FB in this instance is a third party in the dispute. Force the information out from the company... But do not order the company to continue to serve those 2 customers if they choose not to

Re:Judge Shluger's order violates Facebookâ(T (0)

Anonymous Coward | more than 2 years ago | (#38036068)

I think a court order trumps FB's TOS, so I doubt he cares.

Is there any mechanism to challenge an order like this, or is the judge's word final? Are there any limits on what you can be compelled to do by a judge?

Re:Judge Shluger's order violates Facebookâ(T (1)

Mikkeles (698461) | more than 2 years ago | (#38036196)

'Are there any limits on what you can be compelled to do by a judge?'

Count how many bully boys and thugs a judge has at his disposal, then compare that number to how many you have.

One question (0)

Anonymous Coward | more than 2 years ago | (#38035636)

Is such a court order enforceable?

Re:One question (2)

larry bagina (561269) | more than 2 years ago | (#38035660)

He can't make them give up the passwords, but he can hold them in contempt of court and have them jailed if they refuse to do so.

Re:One question (0)

Anonymous Coward | more than 2 years ago | (#38035744)

So a judge can order any silly thing? I thought a judge can only order things which are provided for by a law which states he can order those.

Re:One question (1)

nomadic (141991) | more than 2 years ago | (#38035788)

And the law generally provides they can order any silly thing.

Re:One question (1)

UltraOne (79272) | more than 2 years ago | (#38036014)

IANAL, but the short answer is basically judges can order whatever they want in theory, although in practice there are significant limitations (more on that below). Another big point to mention is that the United States uses a common law [wikipedia.org] system, meaning that large parts of the law have never been defined by a statute (i.e. a law passed by a legislature). The major limitations:

1. The judicial selection process almost always picks people who are not going to go off the deep end and start issuing crazy orders, but generally stick close to what is authorized by statutory, regulatory, or case law.

2. Orders from lower courts can be appealed and overturned by appellate courts.

3. There are mechanisms in place to impeach judges.

Within the law, there are various factors that limit orders judge are supposed to issue, and I suspect a relevant one here is jurisdiction. Divorce is a matter for state courts, and if the divorce is occurring in a state where Facebook doesn't have enough of a presence to bring it under the judge's jurisdiction, ordering the parties to swap passwords may be a lot simpler (from a legal perspective) compared to whatever they would have to do to bring another action in Federal court or in a state court with jurisdiction over Facebook to compel Facebook to turn over the data. I'm not sure why the court didn't just ask Facebook to turn over the relevant data. Of course it's also possible they did and Facebook refused, or the court knows that Facebook has refused similar requests (as distinguished from orders) in the past.

Re:One question (2)

jpapon (1877296) | more than 2 years ago | (#38035780)

I think that it's more likely that the judge would simply not give that party (who didn't surrender their password) what they were seeking in the divorce. IANAL, but it seems rather harsh to throw someone in jail for refusing to surrender evidence in a civil case. Seems more likely that they would just lose the case...

the real question to me (0)

Anonymous Coward | more than 2 years ago | (#38035662)

The key question to me is what makes everybody so eager to give so many details of their private lives to a FOR PROFIT company whose entire business model is built around selling that data?

Oh, wait, I forgot... without Facebook, the internet provides *no other way* to communicate with your friends and family. Facebook is the internet's sole communication mechanism. That must be it.

Re:the real question to me (0)

Anonymous Coward | more than 2 years ago | (#38035746)

nobody cares about your tinfoil hat agenda.

Re:the real question to me (0)

allo (1728082) | more than 2 years ago | (#38035944)

mod parent troll.

Passwords, keys (5, Insightful)

Phat_Tony (661117) | more than 2 years ago | (#38035682)

Why not also require them to make copies of their house keys for each other so they and their lawyers can go into each other's houses any time they want and rummage through each other's files, look for evidence of affairs in their bedrooms, look for property not reported in the divorce proceedings, look for signs of alcohol or drugs or depression or other personal factors that might have some bearing on the case?

Re:Passwords, keys (1)

moderatorrater (1095745) | more than 2 years ago | (#38035838)

In divorce proceedings they often do discuss who has access to the house, how to handle shared accounts, etc.

Re:Passwords, keys (5, Informative)

Wrath0fb0b (302444) | more than 2 years ago | (#38035840)

Why not also require them to make copies of their house keys for each other so they and their lawyers can go into each other's houses any time they want and rummage through each other's files, look for evidence of affairs in their bedrooms, look for property not reported in the divorce proceedings, look for signs of alcohol or drugs or depression or other personal factors that might have some bearing on the case?

They can. It's called discovery, and it's one of the most useful tools for civil litigants because it forces the adversary to disclose (or assert under legal penalty that it doesn't exist) any documents relevant to a particular trial. So if you sue some corporation for selling you a defective widget, you can force them to turn over all emails and notes about quality-testing or safety testing for that widget. Without it, you'd have absolutely no way to prove (e.g.) that Sally in engineering sent an email to her boss explaining that the flux capacitor supplier they chose was cutting corners and that it could cause device failure and you could basically never make a case for knowing indifference. Or if you are suing that corporation for violating the GPL and you have reason (binary similarity) to believe that product X contains GPL code, you can demand they turn over that source code for inspection. Again, without it, you would never be able to prove a GPL violation because that source code would be locked inside some secure internal server and you would be forced to make some equivocal claim about the binaries instead of looking at the plain evidence.

A divorce case is (in the eyes of the law, which has this odd thing about procedure being uniform) no different -- each party is entitled to any document or file, electronic or paper, that's relevant to the divorce. That includes anything inside your house, anything in your bedroom, unreported property*, hospitalization records. If it has a bearing on the case, the parties are absolutely entitled to it (under restrictions mind you, public disclosure of any information derived from discovery subjects you to criminal and civil sanctions plus is a great way to get the judge ticked off at you).

* I used to work the tech side of things for an investigation firm involved in the child-support end of divorces (long after the litigation ended) looking for evidence that parties exaggerated or even fabricated their claims of poverty when accused of nonpayment or underpayment. Some of these guys would come in to court pleading that they had no disposable income only to find our pictures of them at strip joints getting lap dances. Concealing assets and income from the court can land you in jail for contempt. Don't do it.

Re:Passwords, keys (3, Insightful)

Anonymous Coward | more than 2 years ago | (#38035894)

Is forcing a password disclosure really ok though? Sure, force them to disclose all their facebook photos, but not a password. That's like saying they must give each other their personal debit cards w/ pin, as opposed to the just the records for the accounts. Passwords are sensitive things.

Re:Passwords, keys (1)

khallow (566160) | more than 2 years ago | (#38036144)

I don't see that argument flying ever for a facebook profile. It's not sensitive. And if the spouse does something untoward, it's easily exploitable in court.

Re:Passwords, keys (1)

skywire (469351) | more than 2 years ago | (#38035906)

Thanks for the dandy explanation of discovery. But you just made it crystal clear that what the judge ordered is not that.

Re:Passwords, keys (1)

Wrath0fb0b (302444) | more than 2 years ago | (#38036016)

I was responding to the GP's breathless assertion that what the judge did would be like giving litigants access to each other's homes and personal/medical information. Which they have.

He tried for an absurd comparison and landed right on the truth!

Re:Passwords, keys (1)

jklovanc (1603149) | more than 2 years ago | (#38036110)

He missed a couple of tools that lawyers use for discovery. Search warrants are one of them. For example if a litigant find a safety deposit box that reasonably may contain hidden assets the court may issue a search warrant for that box. The exchange of passwords is in effect a search warrant for the Facebook account.

Re:Passwords, keys (0)

Anonymous Coward | more than 2 years ago | (#38036182)

I don't think the judge has the authority to make this order. He's essentially ordered this couple to share irrelevant information about third parties.

Imagine if you are a Facebook friend of one of the spouses. Now all your private information is in the hands of a person hostile to your friend - even information not specifically pertaining to that friend.

Taking an interest (1)

Anonymous Coward | more than 2 years ago | (#38035686)

If couples went to such lengths to listen to each other while they're still together, divorces just might become a rarity again.

Re:Taking an interest (1)

ScentCone (795499) | more than 2 years ago | (#38035882)

If couples went to such lengths to listen to each other while they're still together, divorces just might become a rarity again.

No, if couples actually took time to really get to know someone and understand their thinking, they might actually skip over the whole getting married part in the first place (which would, indeed, reduce the divorce rate, but more indirectly). And it would save a lot of misery.

How about the following: (1)

drolli (522659) | more than 2 years ago | (#38035690)

I would write a letter to facebook stating the following:

I intent to share my password with another person for my own advantage. Since i intentionally violate the TOS i would kindly ask you to delete my account or prohibit access.

Then i would wait try to delay swapping of the passwords until that is processed.

Re:How about the following: (1)

Inf0phreak (627499) | more than 2 years ago | (#38035834)

Or change your profile picture to a giant erect penis and start uploading full frontal nudity/porn. Your account will be banished shortly, I think.

Re:How about the following: (1)

BitZtream (692029) | more than 2 years ago | (#38035884)

And then you'd be found guilty of contempt of court and possibly destruction of evidence, which is almost certainly far worse than getting caught cheating because your dumbass posted it on your FB page for the world to see.

Re:How about the following: (1)

drolli (522659) | more than 2 years ago | (#38036052)

I am not sure how pointing a TOS violation would make you liable. If the court wants facebook to open access to your profile then it should rule so.

If i own a shop where somebody bought something or use my services he used for cheating on his wife then - if the court thinks its necessary - the court should rule that i grant the court and the opposing party access to the proof.

The court should not allow to give unauthorized persons the key to a room i possess without asking me. In fact its not even unlikely that by following the court oder the guy actually would violate some other laws

Re:How about the following: (0)

Anonymous Coward | more than 2 years ago | (#38036190)

It is destruction of evidence to report a TOS violation? If anything, Facebook is destroying evidence that was never demanded from them.
If someone posts CP on their website, would it be destruction of evidence if I asked them to remove it?

Bear witness against yourself (2)

Intropy (2009018) | more than 2 years ago | (#38035738)

Does it seem strange to anyone else that while in a criminal trial you can't be compelled to testify against yourself, in a civil trial you can be?

Re:Bear witness against yourself (1)

nomadic (141991) | more than 2 years ago | (#38035798)

Not really, the Constitution clearly states that protection against self-incrimination extends only to criminal cases.

Re:Bear witness against yourself (1)

Intropy (2009018) | more than 2 years ago | (#38036162)

Right. No argument there. No argument at all really. I was just commenting that limiting the protection to criminal cases strikes me as an odd choice.

Re:Bear witness against yourself (1)

Americano (920576) | more than 2 years ago | (#38036166)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Since it's specifically written that way in the Fifth Amendment, no, I don't find it that strange. You CAN assert your fifth amendment rights during civil proceedings if answering a question (say, during a deposition) would incriminate you - your fifth amendment rights supersede the right of discovery - but the judge (and, if it's a jury proceeding, the jury) may draw an adverse inference based on your invocation of fifth amendment rights in civil cases. In other words, if you are involved in criminal cases (say criminal negligence for creating & continuing to sell a faulty product that you knew would injure or kill people), and also involved in civil cases for damages caused by that same product, you can invoke 5th amendment rights when asked questions that might detail whether you KNEW the product was faulty - since that would incriminate you in your criminal case, but the jury can look at that answer, and draw their own conclusions in the civil case and say, "since he invoked his 5th amendment rights, it seems likely that he DID know the product was faulty, and thus is liable for the damages it caused."

Civil cases are decided on the "preponderance of the evidence," and in this case, they can use your 5th amendment assertion as evidence in and of itself.

I would just change my password to (2)

pumpknhd (575415) | more than 2 years ago | (#38035764)

[insert spouse's name]isabitch

Write access? Really? (1)

Alex Belits (437) | more than 2 years ago | (#38035786)

Facebook password will just allow them to impersonate each other and plant all kinds of incriminating shit.

Re:Write access? Really? (1)

allo (1728082) | more than 2 years ago | (#38035986)

you can post a status "spouse has the fb-pw by now". Too hard to do?!

The law supersedes anything FB says. (1)

BitZtream (692029) | more than 2 years ago | (#38035876)

I wonder if Judge Shluger is aware that his order violates Facebook’s TOS

Facebook's TOS stops applying where the Judge's order starts. Facebook's rules are always overridden by laws. This isn't difficult. Company rules have to follow the law, even when the law is changed right underneath them for something like this.

Re:The law supersedes anything FB says. (0)

Anonymous Coward | more than 2 years ago | (#38035960)

Judges can't just make a ruling and call it a law. A judge can order an abortion for an expectant drug addict but expect it to be escalated and overturned.

For the Civics-challenged (0)

Anonymous Coward | more than 2 years ago | (#38035920)

While all may be ‘fair’ in love and war (and personal injuries), password exchanges like this are not kosher according to Facebook’s terms of service. I wonder if Judge Shluger is aware that his order violates Facebook’s TOS, which require that users not hand over their passwords to anyone else.

I realize people are becoming increasingly ignorant due to choices in recent decades to limit or eliminate Civics from most educational curriculum in the United States. To fill you all in, a Court Order trumps any terms or contracts set out by any private parties. The judge need not have any concern about violating Facebook's TOS.

A clear case Idiocracy becoming reality.

ToS has no legal bearing (0)

Anonymous Coward | more than 2 years ago | (#38035946)

I guess it shows that a site's ToS is irrelevant in the eyes of the law

Technical incompetence of parties (3, Interesting)

Lulu of the Lotus-Ea (3441) | more than 2 years ago | (#38035982)

I can actually see a reasonable discovery purpose in looking at the contents of FB pages, and that is mentioned in the article. For example, if the parties have made comments about how responsible they might be in a custodial role (something suggested in article), that could be germane.

But FB isn't really a walled garden anymore. Now there is a quite good "export my data" functionality within it. A reasonable judge's order would simply be for exchange of that downloaded data, which will contain all the relevant background that might exist with past posts. Obviously, this is contingent on parties not deleting old posts first, but other posters have already noted how doing that would be spoilation of evidence (and if parties would do that, they could equally do so with a live account after passwords were shared).

I do recognize that the article mentioned "dating sites" too. Those sites may still be walled gardens, and may well not provide easy data export capabilities. For those, the only way to look at relevant posts/emails/profiles/etc. might indeed be password sharing. Of course, who knows what general data policies those sites have--i.e. are messages automatically deleted after N days, and archives inaccessible to users? Access to password may or may not reveal the full history of site usage.

The stupid, it burns (0)

symbolset (646467) | more than 2 years ago | (#38035992)

The stupid part is not the judge, but people who use Facebook for things that might be of interest in legal or civil proceedings. Are people really this dumb?

Is it necessary? (1)

Hentes (2461350) | more than 2 years ago | (#38036038)

Most things on Facebook are already public, or did it become that secure that a move like this is necessary?

The joke used to be... (1)

forgot_my_username (1553781) | more than 2 years ago | (#38036114)

Find someone you hate and hand them half your cash... and just shorten the process.
Apparently, now you also have to hand over your passwords

No... your honor... she can keep the Myspace account.

Two-Step verification (1)

sbrown7792 (2027476) | more than 2 years ago | (#38036172)

If you ever were looking for a better time to use it, you won't find one.
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