When is a post not a post?

I hate to start an article with "back in my day... " but I am going too. Back in my day, we were taught street smarts. Unfortunately, street smarts have been destroyed by social media and it is creating very dangerous consequences.

As a child growing up, I was taught never to take a ride from a stranger. Then someone created an app for having strangers pick you up and drive you home, and everyone was getting into a car with a stranger and telling them where they lived. Back in my day when we were not home (or went on vacation), you never published that out loud. Neighbors turned on and off your lights; the paper and mail were stopped - all to demonstrate you were home and to fool any would-be thieves. Now, it is quite the opposite. People cannot wait to announce to the world they are everywhere but home. Carmen Sandiego would be very easy to find nowadays. If you know, you know; if you don't, look it up.

In a recently filed lawsuit, Apple is being sued because alleged stalkers have used AirTags (a small tracking device about the size of a quarter meant to locate lost keys, wallets or luggage) to track their intended victims. The suit alleges that Apple should have known that their product could have been used for nefarious purposes such as stalking and created safeguards to prevent it. But is the device to blame, or is there something more we should be looking at?

This generation, and future generations, will have been (or will be) brought up in a digital age. Their access to social media at young ages has inoculated them against its dangers. Social media applications have created a false sense of community, where everyone is my "friend" or a "mutual" (someone who knows someone, so, therefore, we are "friends"), so there is no issue with sharing everything about me, including my location. Sharing your location, photos, and thoughts with hundreds of people minute-by-minute is the norm, not the outlier. Don Corleone would struggle today to prevent Santino from telling people outside the family what he thinks.

Before the pandemic, a colleague and I created a program in which we went to high schools to discuss the issues of domestic violence with students. The program was ultra-successful in that we spoke to almost 50,000 high school students in a little over two years. As part of the presentation, we spent a portion of the program talking about social media, its dangers for domestic violence victims, and the unfettered access it provides to domestic violence abusers. But how do you teach high students about the dangers of cyber-stalking when their entire lives are based on cyber-sharing? Even when a threat is "blocked" (i.e., denied access to the information), their friends and mutuals are not blocked, so the information is still easily attainable.

Consider this hypothetical:

A and B are both high school students. They used to be in a dating relationship but have since broken up. A has moved on and is dating other people, but B still struggles with the breakup. As they are both in high school, they are still in the same classes and see each other around campus. A believes B seems to be following A, but it's hard to say because they have classes near each other, and B "always seems to be around."

A is a prolific user of social media. A posts photos of people A is with, shares location information, and posts on other issues. Both, upon ending their relationship in 2020, unfriended each other on their social media applications but did not block them from having access to their social media posts. A's friends have informed A that B keeps tabs on A through A's social media posts. A recently found out that B is taking A's postings, negatively altering them with obscene comments and emojis, and reposting them on B's social media apps. Upon learning about this, A blocked B from accessing all of A's social media pages.

Since blocking B, A has learned that B is still obtaining A's postings and continuing to alter and make lewd comments. A is also convinced that B is stalking A because A has run into B at multiple locations, including the mall, the grocery store, and numerous parties thrown by friends and mutuals to where B was not invited. Still, A shared A's location allowing B to know where A could be found. Some posts have also mentioned places A has been, but B could not have known about it unless B followed A.

A seeks a Domestic Violence Restraining Order ("DVRO") against B. At the hearing, A presents evidence that B has re-posted over 100 of A's photos and other postings, all altered negatively about A. A requests a DVRO for stalking and cyberstalking, invading A's privacy, harassment, and disturbing A's emotional calm. A also seeks an order preventing B from accessing A's social media apps. During the hearing, B admits to the posting but states that A's posting was open to the general public and not private. B testified that B never actually "tagged" A in any of the postings, and A only found out about the posts because mutual friends would send A screenshots. A did not find all the altered posts until A was preparing for the DVRO filing, and A had to access B's social media, so A was invading B's privacy and not the other way around. As for the stalking, B admits that they have run into each other at different locations. But they attend the same high school and have the same friends, so they will see each other at parties and other places, such as the mall. That would hardly qualify as stalking, and both times they were in public places. Other than pleasantries, B has not spoken to A to any extent since they broke up.

How should the Court rule?

Is the DVPA chasing its own tail? And will it ever catch it?

Ask an expert in cyber-related matters, whether criminal, intellectual property, security, etc., and they will tell you the problem is not the past but the future. As quickly as laws are changed to rectify a past issue, a new issue arises that was not previously contemplated when the laws were promulgated. The same is true for cyber-related matters and social media as it applies to the Domestic Violence Prevention Act (DVPA). As fast as the laws can be changed and legal interpretations of definitions broaden, the digital age is moving faster. So how does the DVPA keep up?

Though once restricted to "domestic" (meaning within the household) and "violence" (referring to physical violence), the definition of domestic abuse is no longer limited to these strict definitions but includes a multitude of conduct that does not involve any bodily injury or assaultive behavior.

The DVPA (Family Code, Section 6200, et seq.) authorizes the issuance of a restraining order "if an affidavit or testimony and any additional information provided to the court ... shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Section 6300(a).) A restraining order may issue under the DVPA, "an order described in 6320 enjoining specific acts of abuse" (Section 6218(a).) Section 6320 states, "(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating..., falsely personating ..., harassing, telephoning, including, but not limited to, making annoying telephone calls ..., destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members."

In Burquet v. Brumbaugh 223 Cal.App.4th at pp. 1142-1143, 1146-1147 (2014), the court granted a restraining order with no evidence of physical abuse. Still, the restrained party disturbed the peace of his ex-girlfriend by calling her, emailing her, sending her text messages, showing up unannounced at her home, and refusing to leave. He also ignored her statements that the relationship was over and to stop contacting her. However, what happens when, like in our hypothetical above, the party to be restrained never actually directs any specific action toward the party seeking protection?

In re Marriage of Nadkarni, 173 Cal.App.4th 1483, 1497 (2009), the Court held that "Section 6320 broadly provides that 'disturbing the peace of the other party' constitutes abuse for purposes of the DVPA. The DVPA does not provide any definition for the phrase 'disturbing the peace of the other party,' and we therefore turn to the rules of statutory construction to determine the meaning of the phrase..." The Court found that "the ordinary meaning of 'disturb' is '[t]o agitate and destroy (quiet, peace, rest); to break up the quiet, tranquility, or rest (of a person, a country, etc.); to stir up, trouble, disquiet.' 'Peace,' as a condition of the individual, is ordinarily defined as 'freedom from anxiety, disturbance (emotional, mental or spiritual), or inner conflict; calm, tranquility.' Thus, the plain meaning of the phrase "disturbing the peace of the other party" in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party." (Id (Citations omitted).)

In Nadkarni, a first of its kind regarding cyber issues (emails), the wife sought a restraining order against her ex-husband. Wife alleged that her ex-husband had accessed her private email account while she was away on a business trip, then attached the emails as part of his pleadings in a custody dispute of their teenage children. (Id. at 1487-1488). Wife alleged that her ex-husband's conduct of "accessing, reading, and publicly disclosing the content of wife's confidential emails, and that his conduct caused her to suffer 'shock' and 'embarrassment,' to fear the destruction of her 'business relationships,' and to fear for her safety." (Id. at 1498-1499). The Court, therefore, concluded that the allegations in the wife's application and declaration were facially sufficient for a showing of abuse within the meaning of the DVPA." (Id).

In a similar but far more expansive case than Nadkarni, In re Marriage of Evilsizor & Sweeney, 237 Cal.App.4th 1416, 1421 (2015), Wife alleged that her Husband "had downloaded her private text communications to third parties, including her attorney, without her consent, and had hacked into her Facebook account, changed her password, and rerouted the email associated with her Facebook account to his own account." He also accessed her "notes" which she used as a diary. Husband provided to wife "a USB drive containing about 11 to 12 gigabytes of data he had retrieved from her phone. [Husband] objected to providing the data in a different format, claiming it would constitute about 219,000 printed pages." (Id at 1421).

As in Nadkarni¸ Husband attached the downloaded documents to court filings disputing that he was the father of their minor child and other property dispute issues. Wife claimed that, as a result, she suffered "extreme embarrassment, fear, and intimidation." (Id. at 1421.) Wife also alleged "that [husband] threatened to reveal publicly more text messages and e-mails for leverage in the dissolution proceedings. She sought an order prohibiting Sweeney from further disseminating her text messages and e-mails, requiring Sweeney to return all electronically downloaded information he had accessed along with hard copies of the messages, and barring Sweeney from accessing or interfering with her Internet service provider or social media accounts." (Id.).

The Evilsizer court concluded that even "if husband legally obtained wife's information (husband's contention), the DVPA granted the court the power to enjoin the disclosure or threats of disclosure of the information to protect wife's peace of mind." (Id. at 1423). "The court ordered husband be 'prohibited from using, delivering, copying, printing or disclosing the messages or content of [wife's] text messages or e-mail messages or notes, or anything else downloaded from her phone or from what has been called the family computer except as otherwise authorized by the court.' Husband also was prohibited from trying to access or otherwise interfere with wife's Internet service provider accounts or social media accounts." (Id).

In a case closer to our hypothetical, the Court looked at social media posts in Curcio v. Pels, 47 Cal.App.5th 1 (2020). Curcio was granted a two-year restraining order against Pels. "The trial court made clear it was issuing the restraining order on the ground Pels had disturbed Curcio's peace through the October 2018 Facebook post." (Id at 12). Pels appealed the granting of the restraining order.

In overturning the decision and setting aside the restraining order, the Court found that "Pels's single, private Facebook post accusing Curcio of abusing her is a far cry from the conduct described [in Nadkarni and Evilsizor]. Pels expressed political views and posted her opinion of Curcio to her own private social media account." (Id. at 13, Emphasis in original). The Court found that "Curcio herself told the court she believed the post 'was not public.' Curcio also presented no evidence Pels sent her harassing, threatening, or unwanted texts or e-mails ...or social media posts, for example. Indeed, Curcio told the court she had not been in contact with Pels. Nor is there evidence Pels published or distributed to third parties Curcio's private information or messages ...' Curcio certainly never claimed the Facebook post included her confidential information." (Id. at 13).

The Curcio court stated, "we do not interpret Nadkarni and its progeny to hold a restraining order may issue based on any act that upsets the petitioning party. The DVPA was not enacted to address all disputes between former couples, or to create an alternative forum for resolution of every dispute between such individuals." (Id. at 13). While possibly upsetting, the Court could not find that a single post on a private Facebook page "cannot be said to rise to the level of destruction of Curcio's mental and emotional calm, sufficient to support the issuance of a domestic violence restraining order." (Id).

Conclusion

So is a restraining order warranted against B for merely altering A's public posts and commenting on them as B did, even if the comments were crude and upsetting to A? Should the court consider the fact that they attend the same high school, are in close contact daily and share a similar friend group in determining if the conduct is abusive? Or, as in Curcio, the posts were made to B's social media accounts and did not direct any conduct or words directly to A? What about B constantly appearing at places where A is located? Is B stalking A? Or, again, are these the realities of sharing in a small social world?

It depends...

(Note: The last time I wrote about domestic violence (March 2021), I asked what effect a reference in Section 3044(a) to subparagraph (C) of paragraph (1) of subdivision (b) of Section 3011, would have in the analysis. The answer to that question was none. The subparagraph did not exist. Section 3044 has since been amended to read "subparagraph (A) of paragraph (2) of subdivision (a) of Section 3011." Score one for the power of the pen.)