To Spy or Not to Spy – Help Me!

On behalf of The Marks Law Firm, L.L.C. posted in Divorce, Evidence, and Private Investigators on Wednesday August 7, 2013

In any contested divorce with custody of the children or distribution of millions of dollars at stake, the temptation to “dig up dirt” can be strong.  Fans of the new Showtime show Ray Donovan may wonder how to find a “fixer” like Ray who happens to always find proof of some hidden secret – a wife having an affair with her husband’s brother, a male movie star who is hiding his sexual deviance – in order to extort a favorable settlement for his client.  A Ray Donovan may indeed exist, and a law firm may even use his services, but rest assured – what Ray does violates a whole host of state and federal laws.

But real dirt does make it into many high and not so high profile divorces in courts across the country.  Can I find this dirt without violating the law?

The most common method of trying to catch your spouse in a case-changing moment is through some form of electronic spying.  For example, you may have a recording of your soon-to-be ex having a phone conversation with his paramour.  But depending upon how you obtained the recording, you may have committed a felony – and assured that the evidence could not be admitted in court.

To understand why, we need to briefly explore the federal and state wiretap laws.  The Electronic Communications Privacy Act (ECPA) was passed by Congress to limit the situations where a person could intercept the electronic communications of other persons.  Missouri has a similar statute with the same restrictions.  In general, it is illegal to “tap” a phone or a computer without a warrant.  However, if you are the owner of a phone or computer and are one of the parties to the conversation, you have the right to record that conversation without the knowledge or consent of the other party.   So, if your spouse admits to having an affair while on a phone conversation with you that you happen to be recording, congratulations – you have admissible evidence.  The same would hold true for a Skype conversation or an email or a text.

But what happens when you are not a party to the conversation?  Let’s start with a simple example – your spouse borrows your phone and foolishly decides to call her paramour and you have an active app on your phone recording all phone conversations.  Now we get into murky waters because you are not a party and did not give consent to the taping, so here you would likely cross the line.  The same would apply if you had any type of spyware programs on your own computer that your estranged spouse decided to use.  Ironically, if these were not calls but texts or online chats on your phone or computer, because you own the phone or computer, you could legally obtain the transcript of these conversations – even if they were deleted from your phone.  Straying further, if you decided to hide a camera in the marital home and record events to which you were not a party, you would have crossed the line.  Ditto if you did so through the computer and some spyware program.  But again, ironically, if you and your spouse had a security camera on the house by consent and it recorded a tryst, you could obtain that footage, as you could any pictures taken by your neighbor that were plainly visible through your home’s open window or yard.

The distinctions may seem strange or silly to you, but not to the law which is designed to protect reasonable expectations of privacy.  Foolishly kissing a paramour in the backyard of the marital home in full open view is different from sex behind closed doors and blinds inside the marital home.  And the distinctions have real consequences.  In one glaring example, a federal district court awarded a man statutory and punitive damages in excess of $60,000 because his former spouse put a recording device into their daughter’s favorite bear which she kept with her when she stayed at the man’s house and nearly everywhere else she went.

To sum up – taping your own conversations generally does not violate the law, and obtaining records of activity on your own cell phone or computer does not violate the law.  But what about other types of spying – a GPS planted on a car, a disc image of the family computer?  We will discuss these issues in the next post.

Important note:  we strongly urge you to consult with an attorney before you consider any type of attempts to intercept electronic communications, not only because the legal advice could protect you, but also because the wiretap laws have exceptions for reasonable reliance on legal advice.

If you have questions about spying or wiretapping in a family law matter, contact us – we can help.