Big Brother Has Arrived

Ms. Faye Riva Cohen
April 11, 2013 — 934 views  

Many years ago it was the stuff of science fiction that our society would evolve to the point that everyone’s private information and whereabouts, and sometimes thought processes, would be monitored by outside forces, primarily law enforcement. To a large extent that fiction has become truth, and much of that truth has been fostered by people themselves, many of whom indiscriminately reveal many private things about themselves, including their whereabouts, purchasing choices, what they like and don’t like, information about their friends and relatives, and much more. In fact, there has been a sea change in our society about people’s willingness to provide information to other people, stores, and companies, and an equivalent diminishment in the number of people making attempts to protect their privacy.  Even people’s perceptions of what information they feel is really private has drastically changed, but this is often generational.

I have seen the repercussions of this sea change in some of the cases involving clients we represent, and I will give some examples.  The lesson of all of these examples is to think very carefully about the information (both in print, photographs or video) you want to divulge to others, and to realize that much of what you divulge will not only not remain private, but may be subject to being discovered informally or through the legal process.

  1. Our client’s wife, who was pursuing primary custody of the couple’s children after their separation, informed the court that she required a continuance of a hearing because of some emergency. However, on her public Facebook page she posted photos of herself attending the opening of a new casino, on the same day she had the alleged “emergency”, stating that she couldn’t miss this significant event. The judge was persuaded to rule against her based on her lies and her apparent lack of character. In fact, in the area of family law, social media has had a tremendous impact, both in destroying marriages, as spouses can view cheating behavior posted by the cheating spouse or their significant other, and by revealing information about behavior people used to have to keep private, but now boast about.

  2. Our client was accused of sexually harassing a co-worker with text messages. Prior to consulting us he agreed to sit down with a human resources representative, open up his private e mail account, and peruse the messages with the representative. Also before he consulted us he agreed to produce his telephone records providing all of the text numbers for a certain time frame.  I would have instructed him, had he consulted me in advance, that he may not have been required to provide access to his personal information, as it would have exposed private information of others. But, once the client waived his privacy rights, we could not reinstate them. Once the numbers were provided, our client assured us that none of the numbers were unknown to him and that everyone he had texted was family or friends. Unfortunately, that was not the case, and the number of the person who he had allegedly harassed appeared, and our client was fired. Although it is possible that our client would have been fired if he had not cooperated with an investigation, he might still have had a chance to receive unemployment compensation benefits, as it would have been his employer’s burden to prove that he committed willful misconduct, and without the telephone records, that may not have been possible.

  3. Our client, a student teacher graduating from college, gave his e mail to a high school student whose classroom he had been assigned to, who represented that she had questions involving her education. When she e mailed him, she veered into areas of conversation that were flirtatious. As it was the evening hours, our client was exhausted, and was in the midst of packing and moving, he engaged in banter with her via instant messaging. The student preserved their conversation on her computer, and her mother ran across it and complained about the student teacher.  The student teacher, who had an impeccable educational career until that time, had been involved in youth activities for years, and had stellar references from other teachers and professionals, was denied his teaching license after a lengthy and expensive appeals process because his college, which did not discipline him, stated on a licensing form that it could not give him a character reference for teaching.

The courts are increasingly ruling that when people display themselves in any format which,  by words or actions, they don’t intend on keeping private, this information is subject to discovery and presentment as evidence in a disciplinary proceeding or legal forum. As a result of people’s behavior it will be more and more difficult in future years to limit information publication.     

Ms. Faye Riva Cohen

Law Office of Faye Riva Cohen, P.C.

I am Faye Riva Cohen, Esquire and am a Philadelphia attorney who has been practicing law since 1974. I am the president and managing attorney of both the Law Office of Faye Riva Cohen, P.C. and Legal Research, Inc.