During a divorce, it’s common for one or both spouses to seek evidence of the other’s potential infidelity, irresponsible spending, hidden assets, abusive behavior, or other conduct relevant to divorce proceedings. With many people frequently using social media and messaging apps like Facebook Messenger for communication, these digital conversations can become a source of useful information.
Can Facebook messages be subpoenaed?
Yes, Facebook messages can be subpoenaed as evidence in a divorce case in most circumstances. A subpoena is a legal document issued by a court that compels the recipient to produce documents, records, or other evidence that are relevant to a court case. Subpoenas can be issued to companies like Facebook to provide records from a specific account in accordance with the company’s policies.
If you believe your spouse has sent or received messages on Facebook Messenger that provide evidence of any misconduct, you can request those records through your divorce attorney. Your attorney can prepare a subpoena to be approved by the judge handling your divorce case and served to Facebook’s registered agent. However, it’s important to have reasonable justification for requesting these private communications.
Why would Facebook messages be subpoenaed?
Here are some of the main reasons Facebook messages may be subpoenaed in a divorce:
- To reveal evidence of adultery or inappropriate relationships
- To uncover dishonesty about finances or hiding of assets
- To demonstrate irresponsible spending or gambling habits
- To provide proof of domestic violence or child abuse
- To show drug or alcohol abuse issues
- To reveal conversations about divorce planning or strategy
- To expose contradictions to testimony or statements
Subpoenas for social media and texts are becoming more common in divorce cases today, as spouses turn to messaging platforms thinking they are private. Family lawyers know how to legally request these digital communications when needed.
What kind of Facebook messages can be subpoenaed?
A subpoena can compel Facebook to turn over data from both sides of a conversation on Messenger, including:
- The full text, images, emojis, and files exchanged
- Timestamps showing when messages were sent or read
- Information identifying the sender and recipients
- Location data if messaging on mobile devices
- Records of deleted or edited messages
- Chat history for group conversations
In general, any message or activity conducted through an account via Facebook Messenger can potentially be subpoenaed. The court may limit requests to a certain date range if blanket requests seem unreasonable.
What is the process for subpoenaing Facebook messages?
The basic process for subpoenaing Facebook messages in a divorce typically includes:
- Consulting with your divorce lawyer to determine if subpoenaing Facebook messages is justified and likely to produce relevant evidence for your case.
- Having your attorney draft, file, and serve a subpoena document specifically requesting account records and messages from the court.
- Facebook reviews the subpoena for compliance with its policies, privacy laws, and the scope requested.
- If approved, Facebook produces the subpoenaed account records to your divorce lawyer within the timeframe ordered.
- Your lawyer reviews the records and determines whether to submit any content as evidence in the divorce case.
Parties in the divorce are notified if their Facebook messages are being subpoenaed so they have a chance to legally object or file a motion to quash if there are legitimate privacy concerns.
What are Facebook’s policies on complying with subpoenas?
Facebook outlines its policies for handling legally valid subpoenas, court orders, and search warrants in its online Help Center. Key details include:
- Facebook only complies with requests that are appropriately narrow in scope and follow applicable laws.
- Subpoenas need to be served on Facebook’s registered agent based in California. The company does not always comply with subpoenas issued from courts in other states.
- Subpoenas need to be domestic civil subpoenas, domestic criminal subpoenas, or grand jury subpoenas.
- Foreign requests need to meet separate criteria including complying with treaties like the Hague Evidence Convention.
- Facebook provides notice to users if their account is targeted so they can file motions opposing the subpoena if desired.
In general, Facebook scrutinizes subpoenas to ensure user privacy is respected and only relevant information is disclosed as required by law. The company does comply with properly executed subpoenas related to civil legal disputes like divorce cases.
What are the grounds for quashing a subpoena for Facebook messages?
If you have received notice that your Facebook messages are being subpoenaed in a divorce case, you do have legal options to quash or object to the subpoena. Some common grounds for disputing a subpoena for social media records include:
- The request is overly broad or seeks irrelevant private information
- The request violates rules of evidence or procedure
- Subpoenaing the records would cause undue burden or expense
- The content is protected by privilege, such as attorney-client privilege
- You have a reasonable expectation of privacy for the communications
- The request amounts to harassment or exceeds what is necessary for the case
You should consult an attorney to argue a motion to quash the subpoena based on convincing legal objections. However, in many cases the subpoena will be upheld if it is reasonably targeted to obtain evidence related to the divorce proceeding.
Are there alternatives to subpoenaing Facebook messages?
Before taking the serious step of subpoenaing private social media messages and records through complex legal channels, some alternatives you may discuss with your divorce attorney include:
- Requesting access voluntarily – You could simply ask your spouse to voluntarily share access to portions of their Facebook messages and other social media activity relevant to the divorce. This relies on cooperation.
- Requesting via discovery – Formal requests for social media records can be made through the discovery process early in a divorce.
- Using spy apps – Spyware phone apps may enable you to view a spouse’s messages. However, this raises legal and ethical concerns.
- Hiring a forensic expert – A digital forensics firm may be able to recover some deleted social media messages and data without needing to subpoena Facebook itself.
A subpoena should not be the first option pursued without trying other less invasive and complex alternatives that can save time and legal fees. But in some cases, it remains the proper channel to obtain the full scope of messages needed as evidence.
Can Facebook messages be used as evidence in court?
Yes, the content of Facebook messages can be used as evidence in divorce court proceedings, as well as negotiations and mediation, if properly obtained through valid legal procedures. Admissibility will depend on rules of evidence such as relevance, authenticity, and legality of how the messages were acquired.
Family lawyers may introduce printed copies or digital screenshots of incriminating Facebook messages to judges or mediators as exhibits in the divorce case. However, care is needed to prove the messages are genuine and untampered. Circumstantial evidence may also back up inferences made from messages.
While Facebook messages can be valuable evidence, it’s important to have reasonable discretion in what private communications are brought into court proceedings to avoid excess embarrassment or animosity.
What happens if you delete Facebook messages that were subpoenaed?
Deleting Facebook messages that you know have been subpoenaed in a legal proceeding can put you at risk of being charged with destruction of evidence or obstruction of justice. These are criminal offenses that can result in fines or even jail time. The court may also make negative inferences about your truthfulness and motives for deleting relevant messages.
In some cases, the deleted messages may still be recoverable by forensic experts even if you delete them after the subpoena. So destroying subpoenaed evidence rarely achieves the purpose and only makes the situation worse legally.
Can old Facebook messages be subpoenaed?
Yes, Facebook messages can still be subpoenaed even if they are months or years old. There is no time limit or statute of limitations restricting how old message records can be legally requested with a valid subpoena. The key is that the messages must be relevant to proving or disproving meaningful issues in the ongoing divorce case.
Old messages may provide important history and context about issues like infidelity, questionable behaviors, finances, or other disputes. Your lawyer can specify the precise date ranges required to capture relevant past conversations.
Is it ethical to subpoena a spouse’s private Facebook messages?
There are certainly ethics concerns when subpoenaing a spouse’s private social media messages without consent. Essentially, you are asking the court to compel them to turn over communications they assumed were secret and confidential. This can feel like an invasion of trust and privacy within the marriage.
However, these actions may be justified and necessary to uncover the truth and properly resolve divorce-related matters of property division, spousal support, and child custody arrangements. The overarching goals of justice, fairness, transparency, and closure for both parties may outweigh temporary violations of privacy when substance abuse, violence, or deception may be present.
Consult carefully with your attorney so requests stay narrowly tailored and don’t devolve into “fishing expeditions.” With discretion applied, subpoenaing Facebook messages can produce needed evidence while minimizing intrusions into reasonable privacy boundaries.
Can Facebook messages be anonymous?
True anonymity is not possible on Facebook Messenger since it requires linking to an authenticated user account. However, there are ways to try to conceal your true identity from the person you are messaging:
- Use a fake or pseudonymous account profile not traceable to your real identity
- Avoid sharing any identifiable details about yourself
- Refrain from sending any profile pictures of yourself
- Request that the recipient not save or screenshot your chat conversations
However, any Facebook messages you send are likely to be subpoenaed by legal name and traced back to you if needed, even from a pseudonymous account. The platform is designed for real identity usage, so anonymity is very limited.
Can you get a transcript of Facebook messages?
It is possible to get a complete written transcript of a full conversation thread on Facebook Messenger, which may be necessary for legal proceedings. Options include:
- Manually copying and pasting messages into a text transcript
- Using a third party app or tool to export the messages
- Requesting Facebook provide a transcript when complying with a subpoena
- Using transcription software on screenshots of messages
Transcripts may need to capture identifying details on who sent each message and the associated timestamps. Formatting like emoji are often lost. Transcription can be time consuming for long conversational histories so services may be needed.
Can you recover permanently deleted Facebook messages?
Recovering permanently deleted Facebook messages is difficult but may still be possible in some cases through a few methods:
- Requesting backups from Facebook – The company may have access to deleted records depending on retention policies.
- Checking logs on the devices used – Synced device logs may contain traces of deleted messages.
- Using data recovery software – Specialized tools may find remnants left on devices after deletions.
- Hiring digital forensics experts – Forensic analysis of devices may recover some deleted message data.
However, Facebook states that once an account is closed and deleted, records cannot be recovered even with a subpoena. So permanent deletion can make messages virtually irretrievable in some circumstances.
Conclusion
Facebook messages can be subpoenaed as evidence in divorce cases and used to establish grounds for divorce or determine aspects of property division, support, and custody. Parties have options to comply voluntarily with discovery requests or file motions to quash improper subpoenas. Destroying subpoenaed messages can lead to criminal charges. While privacy is a valid concern, the truth-finding purpose of proper legal procedures generally outweighs temporary intrusions into private social media records, when discretion is applied judiciously by attorneys and judges. Thorough divorce lawyers will explore requesting relevant Facebook messages when clients disclose issues that may have evidential proof in digital communications.