Spying in Divorce! Is it ok?

FEDERAL LAW

In December of 2016, the Federal Appellate Court in Illinois ruled that a spouse had violated the Federal Wiretap Act. During a divorce, a party who established auto-forwarding on their spouse’s email account to their own had broken the law. The party in this case was able to find evidence of “serial infidelity”. Situations like this play out in many divorces where one person suspects something and wants to spy on their spouse.

ELECTRONIC ACCESS

Your partner allowing you access to their email account makes it acceptable for you to review their email without specific permission. Conversely, if you are asked to access a specific thread on a one-time basis, you have not been granted unlimited access. This is true even if you were voluntarily given the password and they never changed it. Another example of this limited permission is when your friend tells you that their house key is hidden under their doormat and asks you to walk their dog. This request does not grant you continuous access to their home without permission.

CREDENTIALS

In many homes, there are shared computers and the information on those systems is contained in a shared log-in. The information on that computer can be properly viewed by anyone with granted access. But, if every user has individual log-in credentials, reviewing the data not associated with your personal account is problematic. Mail arrives at your home every day. If it is addressed to someone else, then it is improper to open it and review it without their permission. Instead of being a violation of the Federal Wiretap Act, this is tampering with postal delivery.

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SPYING

The law also prohibits installing keylogging software programs or “spyware” on a shared computer with the intent of capturing another user’s information. Programs such as this capture passwords to gain access to information you have not been granted permission to access. This is like steaming open a letter to read it without the recipient knowing.

DISCOVERY

This same concept would hold true to the unauthorized access of your spouse’s phone or tablet. Given our reliance on electronic communications, this decision will have a significant impact. It is now harder to investigate the difference between what you know and what you suspect. Prior to taking any steps to investigate your suspicions, you should speak with your attorney. It is best to confirm the actions you intend to take do not violate any law that would subject you to criminal or civil penalties.

Posted by: Bradley L. Schencker on January 23, 2017
Posted in: Family, Uncategorized