Beware if you are thinking of spying on your spouse to gain leverage in a divorce or custody proceeding. You may be violating privacy laws. Privacy laws relating to recording another person’s activities vary from state to state and are also governed by federal laws.
Advances in technology have provided tools for recording an individual’s activities in a variety of ways. For example, wearable technology, such as watches and Fitbits, are smart electronic devices that can be hidden in clothing or worn as accessories. A keylogger can be used to record keystrokes on a computer keyboard; and similar software may be used on smartphones. Voice recorders, cameras, and GPS trackers are also common surveillance equipment. Phone applications can be used to record and view someone’s location or track their activities. Use of drones is beginning to make an impression in the surveillance world.
On another level, social media (Facebook, Secondlife, Twitter, Snapchat, Reddit, dating sites, and so on) has opened a gateway of communications for expression, bonding, and negative/demeaning chatter that may provide evidence for your spouse or significant other to use against you in court.
It is legal to gather information from these social media sites so long as that information is available to the general public. It is against the law to surreptitiously “friend” or have another person surreptitiously “friend” someone on a social media for the purpose of gathering information about that person.
This article does not discuss all of the various privacy and other laws that intersect with the type of surveillance matters that may appear in a divorce or custody proceeding. Here are some issues to consider if you are contemplating spying on your spouse or significant other.
The federal wire tapping law 18 U.S.C. § 2511(2)(d) permits recording telephone calls and face-to-face conversations when one party to the conversation consents. North Dakota and Minnesota have similar “one-party” consent laws. Other states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington) have two-party consent laws requiring consent of all participating parties to legally record conversations. Legality of recording is a gray area when parties to the conversation are in different states. In that instance, it is wise to secure consent of all such parties involved. These laws apply to both audio and video recordings of conversations.
Other federal laws may also apply to interception of oral and electronic communications without consent of one participating party, such as Title III or the Omnibus Crime Control Act 1968-2522 and the Electronic Communications Privacy Act of 1986.
Possession of unlawfully obtained information, reading it, or even listening to it may be a crime. This may be true for one spouse who intercepts the other spouse’s private phone conversations even though the intercepting spouse may have had equal control over devises in his home. In 2000 a husband was convicted of unlawful interception of electronic communications under Texas laws for intercepting his wife’s phone calls. (Duff v. State, 33 S.W.3d 17 (Tex. App. El Paso 2000)).
In 2007, a court found a husband’s surreptitious use of a keystroke logger to access his wife’s instant messages and emails violated Massachusetts’ privacy law. (Rich P. Rich, 2007 WL 4711508 at *1 (Mass.Super. 2007).
Attorneys who represent family law clients must comply with ethical standards of honesty and integrity and face disciplinary proceedings if they participate in illegal surveillance activity. A Minnesota attorney was disciplined in connection with unauthorized computer access by installing and using email spyware. (In re Trudeau, 705 N.W.2d 409 (Minn. 2005)).
More recently, a jury in Cass County District Court, Fargo, ND found a licensed private investigator guilty of the disorderly conduct for attaching a GPS tracking devise to a woman’s vehicle during her pending divorce proceeding. Subsequently, the investigator’s license was not renewed by the North Dakota Investigations and Security Board.
A court considered mother’s use of Facebook and blogs to undermine her x-husband when finding the mother was a less fit parent than the father. (Ellisa N. v. Jan B., 32 Misc 3d 1215(A); 930 N.Y.S.2d 174 (Fam Ct) (April 7, 2011). In another New York case, the court ordered the seizure of the husband’s computers when he allegedly installed spyware on his estranged wife’s cell phone. Crocker C. v. Anne E., 26 N.Y.S.3d 724 (N.Y. Sup. Ct. 2015).
Facebook photographs showing a wife partying and consuming alcohol were used as evidence to discredit the wife who told her mental health provider that she had stopped using alcohol. The photographs were accepted by the court even though the wife did not consent to post the photographs because “[t]here is nothing within the law that requires her permission when she was “tagged” or identified as a person in those pictures.” Lalonde v. Lalonde, No. 2009-CA-002279-MR, 2011 WL 832465 (Ky.Ct.App. Feb. 25, 2011). The result was that the husband was designated as the primary physical custodian and the wife was awarded parenting time with their minor son.
Text messages, along with their capability to transmit photos, sounds, and video, are commonly used in divorce proceedings, as many people chose text messaging over phone calls. In addition, many smart phones, Ipads, and tablets are synced with computers. In families where these devices are shared, private photographs and messages taken and sent using one spouse’s private phone may instantly appear on the shared devises that are accessible to the other spouse and the children. Consequently, the spouse who took or sent the messages/photographs may have waived their privacy rights and the messages/photographs may be admissible in custody proceedings to establish bad parenting behavior. Similarly, a spouse who owns or co-own a vehicle may place a GPS tracking device on the vehicle the other spouse is unaware that their location and activities are under surveillance when they drive the vehicle.
The courts continue to grapple with legal questions such as whether a spouse may legally access the other spouse’s device or email by using their spouse’s password without their permission; and determining when consent to use begins and ends.
In summary, using surveillance devices to capture another person’s conversations and spy on their activities could result in criminal prosecution or civil lawsuits for damages.