SPOUSAL SPYING IN DIVORCE
BEST LEFT TO PROFESSIONALS
It may seem innocent enough. You want to know what your spouse is “up to” and want to see if they are cheating. Everyone has these concerns. It must be ok. You can buy all kinds of “spy gadgets” in stores and online. Isn’t it really just the same as mistakenly opening someone’s mail. In this internet era, there are so many options available. But be wary. This is an area where you can find yourself in serious trouble. Cross any lines and you could be sued and/or prosecuted criminally. With so many avenues available to your lawyer, we strongly recommend you stay as far away from spousal spying as possible.
ECPA FEDERAL LAW
The “Electronic Communications Privacy Act” (ECPA) and the “Stored Wire and Electronic Communications Act” are the federal laws that prohibit certain types of electronic eavesdropping. While originally enacted in 1968 to cover telephone calls, these laws were updated approximately 30 years ago to expand their reach into more modern communication methods. As technology advances, so does the federal prohibition against unauthorized access.
INTERCEPTION OR ACCESS TO STORED COMMUNICATIONS
The ECPA law basically makes it illegal for any person to intentionally: (1) intercept, use or disclose any wire or oral communication by using any electronic, mechanical, or other device, or (2) without authority access a wire or electronic communication while in storage. Note that there is a distinction made in the law between the interception of electronic communications and mere access to communications while in storage. “Interception” is defined in ECPA as the “aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device.” On the other hand, “electronic storage” is defined as “any temporary, immediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” The distinction matters. ECPA provides harsher penalties for actual interception of communications as opposed to merely accessing communications being held in storage.
WHAT COMMUNICATIONS ARE COVERED
It is difficult to imagine where technology will continue to go from here. The advances are sometimes mind-boggling. Just recall how we used to communicate at roadside pay phone stands. Then, think how bulky and frustrating the first hand-held mobile phones were. Who knows what we will use in the near future. For purposes of ECPA, it is safe to think “everything is or will be covered” under this law. Currently, the federal law incorporates traditional telephone wiretaps, cordless telephone interceptions, electronic messages, voicemail systems, pagers, chat logs, web-streaming video, voice over IP, and recording or videotaping private face-to-face conversations. No doubt new ways to communicate are already being developed, but your privacy interests under ECPA will remain the same.
CONSENT OR PASSWORD PREVIOUSLY GIVEN
Consent is a valid defense to ECPA claims. After all, this federal law prohibits only “unauthorized” use, disclosure, or interception. If you have previously been given access to email accounts through passwords, it would be arguable that you have been authorized, and no claim can be made otherwise. However, you should still be very careful here. Certainly, if the password is changed, you are now in violation of ECPA. But what about only a verbal change in permission? There is no clear answer to many of these scenarios. Courts will be left to decide the issue of consent on a case-by-case basis. This is just not a position you want to find yourself.
PASSWORD FOR ONE PURPOSE BUT NOT ANOTHER
What if your spouse gives you access to an electronic account for one purpose? Can you go beyond checking on a bill payment to review the entire history of the account? Probably not under ECPA. How about later after time has passed? Again, limited access for a particular purpose would most probably be held to authorized only for that limited time and specific issue. If you go beyond that authority, you risk a violation of federal law.
RECORDING TELEPHONE CONVERSATIONS
Under South Carolina law, you are legally able to record a phone conversation if one of the parties to the communication is aware of and has consented to the recording. This means that you may record your own telephone calls. However, it is illegal to record telephone calls between your spouse and a third party if neither party knows that the conversation is being recorded. Other State’s laws may be different, and you find yourself in violation if the other party is located in such a jurisdiction.
If you unintentionally or inadvertently receive an email, you can read it and arguably use it as you please. The ECPA prohibits the intentional interception or unauthorized access to electronic communications. For example, if a message is sent to you in error, you should be able to use the information for any purpose. The only question is whether a commonly used “error message warning against further dissemination” would bring the issue under ECPA. For accessing password protected private accounts, the consequences would appear much more certain. If you improperly obtain your spouse’s password, it would be illegal to access any messages, and you would be in violation of the law.
Like most federal laws, there are both civil and criminal penalties for a violation(s) of ECPA. It could potentially be very financially damaging, and you could even be subject to up to five (5) years in federal prison. There may also be a civil award of damages, possible payment of your spouse’s attorney fees, and even punitive damages if the breach of privacy is especially malicious and knowing.
STATE LAW VIOLATIONS
In addition to the federal law, there are also state laws affecting your ability to engage in electronic snooping. You might also be sued or subject to state law penalties for actions like invasion of privacy or infliction of emotional distress. Never underestimate the creative mind of a divorce lawyer to create havoc once you find yourself on the wrong side of a relatively vague law. The law of privacy in the era of electronic communications is notorious for its lack of clarity. Even the various federal courts do not rule in a reliably consistent fashion. However, there are some “general guidelines” when evaluating the question of whether you are committing an ECPA violation.First and foremost, there must be a justifiable expectation of privacy to the communication in order for a violation of the ECPA to occur. In most cases, it is not difficult to show which communication involves such an expectation of privacy. It would obviously be reasonable for a person to expect a telephone call to be private. However, it would not be reasonable to consider a message posted on social media to be protected. Email accounts can vary. Individual accounts are one thing. However, joint email accounts where spouses share the service and use the same password would probably not be deemed private. But even that scenario could be challenged if one spouse instructed the other to no longer use the account. Again, it is just not worth the risk here.
HOW TO PROTECT YOUR PRIVACY
As with anything else on the internet, you have to be constantly vigilant about your privacy and protection of information. Certainly, you can have firewalls software and password protection programs installed. We are big fans of a free service called LastPass. This is a downloadable program that allows you to have to remember only one (1) password. All other accounts, including credit cards, billing, and email, can be protected by a generated series of upper case, lower case, numbers, and symbols. While not absolutely immune, it is the best system that is almost impossible to hack. Certainly, the prying eyes of your spouse should be effectively stopped. There are also encryption software programs available, but that may be a bit over the top for most idle banter between friends (and even illicit lovers).
WHAT TO DO IF VIOLATED
Should you discover that you have been violated under ECPA, you have several options and potential legal recourse in several forums. First, you can file a lawsuit for injunctive relief (i.e. to stop the intrusion). Then, as discussed above, you may seek actual damages, punitive damages and even attorneys’ fees. You have to file such a lawsuit within two (2) years after the date you had reasonable opportunity to discover the ECPA violation(s). There are also potential federal and state criminal sanctions as well. The only thing your lawyer cannot ethically do is use the threat of criminal prosecution to negotiate a more favorable civil settlement in your divorce action.
RISKS AND BENEFITS
As we hope to have impressed upon you, there is no good reason to risk an ECPA violation trying to engage in spousal spying. In this age of private investigators and so many other ways to “catch” bad behavior, you should not take any chances in this area. Legal issues aside, it would potentially be very emotionally painful to listen to such conversations any way. Save yourself the drama and the risk of really bad things from happening. Move through the divorce process as quickly and as relatively painlessly as you can make it. We will help guide you through the maze to the other side.
ROBERT J. REEVES P.C.
For more information about this very dangerous area, contact the Fort Mill family law attorneys at Robert J. Reeves P.C. You can call our office at 803.548.4444 . For more immediate help or answers after hours, you can call Robert Reeves on his mobile phone 803-554-4157 or email .