High Tech Spying During Marriage or Divorce: What Constitutes Reasonable Privacy in a Marriage?

Spying Device ImageIt’s easier than ever to spy on someone these days.  James Bond type technology is widely available and relatively inexpensive, due to rapidly developing technology.  Because of the availability of this technology, spousal spying is on the rise. Spouses who suspect their mate is cheating on them are taking matters into their own hands and installing computer software that copies emails and instant messages, magnetic GPS tracking devices that stick to the underside of cars, and hidden cameras  disguised in alarm clocks and teddy bears.  But spying can come with great cost, and we’re not talking about the cost of the technology.

Take these examples:

  • In 2011 near Philadelphia, a man was arrested and faced criminal charges stemming from allegations he installed a $97 spyware program on his family’s computer.
  • In 2010, a jury convicted a man in Minnesota on two charges, stalking and tracking his wife’s car (He had installed a GPS tracking device to the underside of her car, without her knowledge).  He spent 30 days in jail. On appeal, a judge reversed the tracking charge, saying he had “sufficient ownership interest” of the car and thus could legally track its whereabouts.
  • In 2011, a Nebraska mother who embedded a listening device in her daughter’s teddy bear to record the girl’s father was found guilty of violating the Federal Wiretap Act.

However in 2010, a Texas federal judge ruled against a woman who, while divorcing her husband, sued him over allegations that he had put spyware on a computer she used and placed a recording device in the family home before he moved out. District Court Judge Lee Rosenthal cited a 1974 circuit court precedent that the Federal Wiretap Act didn’t apply to “interspousal wiretaps.”

All in all, at least five of the 13 U.S. circuit courts have found that the Federal Wiretap Act does prohibit surveillance within marriages. But on the other hand, at least two have ruled that the law doesn’t prohibit recording your spouse.

As you can see, divorce and privacy laws vary by state, and the legality of spying on your spouse is complicated.  Opinions vary court by court, as far as what constitutes a “reasonable expectation of privacy” in a marriage.  Spouses using spying tools run the risk of breaking wiretap, cybercrime or trespass laws, or they may expose themselves to civil suits.  Because of this, some lawyers have begun proactively warning clients that they could run afoul of state or federal laws if they snoop.

Randall Kessler, past head of the American Bar Association’s family-law section, says “People are dying to know if their spouses are cheating.  You can have all the laws you want, but I think this is going to go on.”  It certainly seems that he may be right.

In a survey last year, 92% of lawyers said they had seen an increase in evidence from smartphones the past three years, citing in particular text messages, emails, call histories and GPS location information, according to the American Academy of Matrimonial Lawyers.

With rapidly developing technology becoming more and more accessible, the above examples will likely continue to increase, as will the number of cases that come before the court.   And the question that will continue to be raised, and determined by law, is what is the reasonable expectation of privacy in a marriage?

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