Digital Spying in Divorce – Should You Do It?

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Technology has changed every aspect of our lives – whether for the better or not depends on who you ask. In terms of divorce, one area of technology we have talked about on this blog is social media and the many pitfalls it has with regard to evidence of behavior of statements that could impact child custody or establish marital misconduct.

As this recent article from NPR indicates, another area of technology is creating headaches for family courts – the ability to digitally spy on your spouse prior to or during a divorce.

We imagine many of you do not realize how much of your stuff has the potential to give away your location. Because of the wide use and distribution of GPS signals that pinpoint your exact location at a given time, anyone who can track this data can also recreate a diary of where you went on a given day. If you are trying to catch your spouse in a lie – having an affair, not taking a child to an appointment – these can be valuable tools.

How does it work?

Generally, either a device has a built-in app for location, like the Find My Phone app or the Find My Friends feature in Snapchat, or one uses spy software to track a device (this latter practice can require putting an actual GPS signal on a device). Depending upon the software, you can have your spouse monitored constantly and record all of the places he or she goes. It also could filter through Google Echo and other home devices that connect multiple electronics through a single main unit that has a signal one could read with a computer. At a minimum, given the technology, you can watch your spouse’s movements in real time (not a healthy way to live).

Is this legal?

It depends. Hacking another person’s computer clearly violates the law; hacking a computer you own generally does not. Recording someone without their permission may violate the wiretap laws of your state if your state requires two party consent – but there may be exceptions based on ownership of the devices. So, as an example, if A owns the two phones used by spouses A and B, A has the legal right to put tracking software or even spyware on the device. It remains unclear from a criminal law perspective if every use of this spyware would be legal (we can certainly think of situations where it would violate another law, for example, videotaping your spouse in the nude).

Part of the problem with the technology temptation is its ease of use. A owns the phone, checks in on where B is, finds something suspicious. Generally, since a private detective could follow B and accomplish the same without violating the law, courts would say no legal violation. But when privacy invasion gets more extreme than mere location but veers into personal space and recording these spaces (say hacking a webcam you own), that pushes into what appears to be illegal behavior (it would seem to qualify as stalking at a minimum).

So what starts out as a legal move becomes a slippery slope into committing a crime. So ask yourself – is it worth it? What evidence do you gain – a picture of an affair? A video? That will probably not make or break your divorce, and it could land you in jail. Further, it leads to obsessive behavior, which can cause one to lose touch with reality and become paranoid.

Also, we have no idea if judges will allow this evidence. Tracking your own property will be allowed, and data on a computer you jointly own could be too. But move past that into murky waters and you probably will see a judge have no interest – other than to think the spying spouse is too creepy. And if you are looking to get custody of your child, stalking your estranged spouse is not a good look before the judge.

In the end, most family lawyers will advise clients not to engage in this type of behavior – not only because of the risk of criminal liability, but also the more practical point that in your typical divorce the evidence will not have a bearing on the outcome of the case. In fact, if it will have a bearing it will be negative – because it makes the spying spouse look bad.

We anticipate in the next few years more legislatures will fix these privacy issues by passing laws that forbid this type of spying. Indeed, the Supreme Court will tell us soon if the GPS signal is a privacy interest under the Fourth Amendment in a case that could have real implications for the spying spouse scenarios (if one has a protected privacy interest, one can sue for violating that interest).

Simple advice: do not do it.

If you have questions about digital spying and divorce, contact us – we can help.

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