Can You Spy on your Spouse in a Divorce?

Categories: Arizona Divorce, Articles

Certain forms of electronic eavesdropping are prohibited by the Electronic Communications Privacy Act (ECPA) and the Stored Wire and Electronic Communications Act, together known as the ECPA of 1986. The ECPA updated and clarified the Federal Wiretap Act of 1968, which was the original wiretapping ban enacted to protect a person’s privacy when using telephone lines. In 1968, federal privacy protections and standards did not envision how computers would use, store, and process information in the future.The ECPA, itself revised in light of new communications technology, addressed privacy and security concerns with electronic communication via email, internet chat rooms, cellular telephones, internet bulletin boards, voice over IPs, and more.

The ECPA is violated when a person intentionally: 1) intercepts, uses, or discloses any wire or oral communication by using any electronic, mechanical, or other device; or 2) without authority accesses a wire or electronic communication while in storage. To violate the ECPA is to expose yourself to both financial and criminal consequences.

Divorce and the ECPA.

The ECPA only prohibits the “unauthorized” use, disclosure, or interception of electronic communications. When a person was given consent to intercept such communications, then the interception is authorized and does not violate the federal statute.

For example, if one spouse routinely provides the other spouse with email account passwords and allowed the use of them, then the use is likely authorized. The courts decide the issue of consent on a case-by-case basis. Consent is not always expressly given; implied consent may be found when the surrounding circumstances are taken into account. This is a complex area of the law with serious penalties for wrongful acts. Therefore, it is advisable to consult with an experienced attorney before taking any action that could be considered a violation of the ECPA.

Recording a Spouse’s Telephone Communications.

Under Arizona’s electronic communications statute, A.R.S. ยง 13-3005, it is permissible to record a telephone conversation if one of the parties to the communication is aware of and has consented to the recording. That means you may consent to the recording of your own telephone conversations. However, it is illegal to record a telephone conversation between your spouse and a third party when neither is aware that their conversation is being recorded. Importantly, many states require that both parties to the telephone call be aware of and consent to the communication being recorded. If you were to record your telephone call and a participant in the conversation is out-of-state, you could be violating the laws of that other state.

Recording Conversations Between the Other Parent and Your Child.

Parents are sometimes concerned about what is being discussed on the telephone between the other parent and their child, and want to tape the conversation at the child’s connection. There are two exceptions to the ECPA: The “vicarious consent exception” and the “extension telephone exception.”

Under the vicarious consent exception, the child does not have the legal capacity to authorize the recording of his or her conversation with the other remote parent. However, the present parent has an obligation to supervise, control, and protect the child and has a fundamental right to consent to the recording of the call. Although not an Arizona case, the U.S. Court of Appeals for the Sixth Circuit has held that a parent may consent to the recording of a child’s conversation. The court required that the parent consenting for the child present a good faith, objectively reasonable basis for believing such action was necessary for the welfare of the child.

Under the extension telephone exception, it is not illegal to use another telephone in your home (which is considered to be “in the ordinary course of business”) to listen in on the child’s conversation with the other remote parent. This exception to the ECPA is based on the premise that it is not illegal to monitor a conversation that one could otherwise hear lawfully. There is a conflict of opinion in the federal courts on whether such a conversation may be recorded, so be advised that obtaining the advice of an attorney before taking any action is the best course to avoid violating the ECPA.

Accessing Stored Electronic Information.

In a divorce or separation, the question about past consent to access stored electronic information may come up, as when a spouse was given the other’s account password to retrieve a particular e-statement or electronic bill. The question becomes whether the spouse gave up any expectation of privacy in the email account when he or she provided the other spouse with the login information. The ECPA envisioned this type of privacy intrusion by prohibiting both the unauthorized access to stored communications, and access to stored communications by someone exceeding authority. Practically speaking, if the password was provided for a certain specified purpose, then it cannot be used for some other purpose. That other purpose would be unconsented to, which is unauthorized and a violation of the ECPA.

Reading Another’s Email.

The ECPA only prohibits the “intentional” interception or unauthorized access to electronic communications. If a message was sent to you in error, then you may use the contents. However, a password is required to access most email accounts. When a spouse improperly obtains the other spouse’s password without consent or authorization, then it would be illegal to access his or her email.

When electronic communications are lawfully intercepted, the information may be used as evidence in a divorce. Making a mistake and accessing email without consent or authorization, however, may result in a lawsuit or criminal charges. Whether your individual situation could expose you to the penalties of the ECPA is a fact-specific inquiry. Therefore, it is advisable to obtain the advice of an attorney before taking any action.

Protecting Your Privacy.

Sometimes the internet and privacy seem to be at opposite poles. To protect your privacy, begin by putting up manageable barriers to secure your computer system when anyone in your home is accessing the internet. This may include installing a firewall, password protection, and encryption software — all of these are readily available and reasonably priced. A firewall may help prevent unauthorized access and scanning of your computer system for personal data. Password protection is common with email programs, which may also advise you on the “strength” of your password choice. The use of encryption software is a very effective method of sending and storing electronic communications — the format of the message is unintelligible to anyone who does not have the decrypting software, or the authorized code.

If you are a victim of an ECPA violation, then you have legal recourse. You may file a lawsuit and seek an injunction to stop the intrusion, and seek actual damages, punitive damages, and attorneys’ fees. When filing an ECPA lawsuit, the statute of limitations period is two years from the date you had reasonable opportunity to discover the violation. You also have criminal and civil legal remedies available under Arizona state law.

Doing the Right Thing.

To avoid violating the ECPA, always seek to answer this question: Does the other party have a justifiable expectation of privacy?

A justifiable expectation of privacy must accompany the communication for an ECPA violation to occur. This principle can be extended to each type of electronic communication. A reasonable person is justified in expecting his or her telephone conversations to be private when placed in the privacy of one’s home. However, a reasonable person would not expect a communication placed on a city bulletin board to be private — so there is no expectation of privacy in the content of that message.

Most of us would consider an email message to be private when a password is required to send and retrieve messages. The password indicates a greater level of security and a correspondingly elevated expectation of privacy. If the email account is jointly accessed, however, where spouses share the service and both use the password, or know each other’s passwords, then their expectation of privacy is significantly less. With internet chat rooms, the fact that access is limited to those who register does not necessarily mean the discussions create a justifiable expectation of privacy. However, some internet chat rooms are only entered with a password — those participants may have a greater expectation of privacy.

Communications Illegally Intercepted.

Once the electronic communication has been illegally obtained, the issue becomes what to do with the information or, better yet, what not to do with the information.

The distinction between “interception” and “accessing a stored electronic communication” is a critical one. If you tapped your spouse’s telephone, for example, or hacked into your spouse’s computer to monitor his chat room discussions, then this is an interception of electronic communications. Interception may also involve acquiring communications as they are transmitted. If you intercepted your spouse’s message without authorization from her or him, then you cannot use it for any purpose. Furthermore, you cannot paraphrase or share the communication with anyone — at least one federal court has held that just listening to an illegally recorded communication can result in a violation of the ECPA. That means the communication is inadmissible in the divorce as well. Each instance of disclosing the information to another person could result in a separate cause of action for damages or criminal sanctions.

Communications Protected Under they ECPA.

The Electronic Communications Privacy Act applies to 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, to name only a few. As you might expect, the act was intended to encompass existing forms of electronic communications while anticipating future technological advances.

Penalties for Violating the ECPA.

In addition to the federal law, electronic eavesdropping in Arizona is a felony offense. And if that is not sufficient to deter this illegal activity, the eavesdropper could be sued for damages having invaded the other party’s privacy.