Staying Away From Spousal Spying – A Look at the ECPA

Suspicion is a powerful emotion – particularly when we feel suspicious of someone we love. While most of us never want to find ourselves in a place where we legitimately feel suspicious of our own spouse, the truth of the matter is that in many marriages, this does happen. Maybe something just seems “off” about your spouse, even though you can’t exactly put your finger on it. Maybe you’ve noticed changes in behavior, strange spending habits, or unexplained changes in schedule. Perhaps your spouse is being increasingly secretive about his or her phone or computer. Whatever the signs may be, you may begin to feel suspicious enough that you want to take steps to find out whether those suspicions are true, and you’re considering spying.

Many people who are tempted to engage in spousal spying often do so without a second thought. In our world today, we have a seemingly infinite amount of “smart” technology at our fingertips – technology that makes spying easier than ever before. There are spyware apps that can be downloaded on smart phones which capture information – texts, recordings of calls, copies of pictures – all without the knowledge of the user. There is keylogging software for computers which steal the user’s password and other private information without their knowledge. There are GPS devices that can be placed on cars, and video devices that can be hidden in houses.

If you suspect your spouse of engaging in marital misconduct, it is understandable that your emotions may be extremely volatile, and spying may be tempting. You may feel angry, sad, and blindsided.  Although it may be difficult, we would caution you to avoid the urge to spy,  if at all possible. Many make the mistaken assumption that spying is a legal activity simply because there are apps available that make it possible for them to do it. In fact, this couldn’t be further from the truth.

The truth, which many people do not realize, is that there are both federal and state laws which prohibit particular types of spousal spying. One of those federal laws, the Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act (“ECPA” for short) addresses spying and provides penalty for spying that those who are considering it should certainly be aware of.

The ECPA – A Look at the Basics

Congress initially enacted the Federal Wiretap Act in 1968. The initial purpose of that act was to ban wiretapping with the intent of protecting personal privacy for those using telephone lines. Needless to say, this 1968 legislation did not envision the eventual use of today’s smart technology, or our multiple modes of communication like emails, chat rooms, text messaging, cell phones, or voiceover IP. As technology has evolved, the ECPA has evolved as well to reflect new technology.

It is important to know and understand the ECPA creates penalties for any person who intentionally:

(1)Intercepts, uses, or discloses any wire or oral communication by using any electronic, mechanical, or other device, or

(2)Accessing without authority any wire or electronic communication while in storage.

Essentially, the ECPA makes it a crime to intercept or use either oral or wire communications with an electronic device, or to access electronic communication while in storage.   This may sound confusing, and any confusion is understandable.  At a more basic level, however, what this means is that no one should attempt to gain access to these types of communications without authorization from the party sending or receiving the information.  The ECPA covers a variety of communications including emails, cell phone conversations, voice-over IP, webstreaming video, and more. 

Ultimately, consent is necessary in order for your access to the information to be legal.  If you are found to have sought and obtained access to your spouse’s private communications, conversations, and activities without his or her knowledge and consent, then you may be subject to the penalties that the ECPA provides. There are both civil and criminal penalties for violating the ECPA, and they can be significant. There can be damages for the victims of your spying activity, as well as punitive damages, and even imprisonment, depending upon the seriousness of the violation.

Knowing that significant penalties may exist for engaging in spying, it is worth seriously considering whether engaging in this behavior is worth the risk. Knowing the law generally is helpful, but many people also want to know about specific activities.  If you are contemplating any of the activities below, or if you believe your spouse may be spying on you in one of these ways, read on for additional information you may want to consider.

Can I Do This? Can I Do That?

  • Recording Phone Conversations: The critical element of recording a phone conversation is consent. Does at least one of the parties to the conversation know that it is being recorded? If so, then the recording is legal. Thus, if you are speaking to your spouse on the phone, you could record the conversation legally. On the other hand, if you are recording your spouse speaking to another person, unless either your spouse or the other person have consented to the recording, it is a violation of the ECPA.
  • Looking at the Contents of My Spouse’s Cell Phone: It is generally held that if your spouse knows that you have the passcode to their cell phone, and that you use the phone from time to time, then there is no reasonable expectation of privacy in its contents.  On the other hand, if your spouse has never given you the password to their phone and you simply happen to guess it, or otherwise obtain it without their knowledge, you likely do not have their consent to look through the phone. Ultimately, unless your spouse has intentionally and knowingly given you access to the phone, it is best to avoid the urge to look through its contents.
  • What About Email? For many of us, email is a primary form of communication. Most of us send and receive multiple emails every day, and can access our email from almost anywhere – whether on a phone, computer, or tablet. Because it is so commonly used, many spouses will attempt to access the other spouse’s email without his or her knowledge. Sometimes, one spouse may put spyware or keylogging software on the other’s computer. These types of software may copy keystrokes, track browser history, and even send copies of the unsuspecting user’s emails to the person who installed the spyware. These sorts of programs are generally considered to be a violation of the ECPA, as they constitute unauthorized access to electronic communications.

Sometimes, we are asked about instances in which one spouse has given the other spouse his or her email password. In these instances, it comes down to the element of consent, as the ECPA only prohibits “unauthorized” uses, disclosures, or interceptions of information. If your spouse has given you his or her email account password and regularly allows you to check that account, then there is no reasonable expectation of privacy. On the other hand, if your spouse only gives you the password on one occasion – for example, to locate a necessary document stored in the account, then there is likely not the reasonable expectation that you will regularly be checking the account. While courts will decide these issues on a case by case basis, it is always best to err on the side of caution and avoid engaging in the activity if you have any concern about it.

  • Can I Snoop Through My Spouse’s Facebook Account? The same information provided above with respect to email applies in general to Facebook and other social media sites as well.  While some spyware programs will track and record chats, messages, and posts from social media, in addition to storing passwords without knowledge of the account owner, this is generally considered to be unauthorized (and therefore illegal) access.  Of course, if you are “Facebook friends” with your spouse, and you happen to notice a post that has intentionally been made visible to other viewers, it is not illegal to screenshot or otherwise capture that content.  Without specific permission, however, it is illegal and ill-advised to attempt to “hack into” your partner’s Facebook or other social media accounts to get information.

While the preceding list covers a number of commonly used ways to spy, it goes without saying that any time you are thinking of engaging in an activity that may constitute spying, you should consult an attorney about the legality of your contemplated actions before you engage in them. Additionally, if you suspect that your spouse may be spying on you, you should take actions to enhance the security of your information, and consult with your attorney about any protections or legal recourse that might be available.

Contact the Law Office of Dustin S. McCrary Today

If you are in a place where you are feeling suspicious and untrusting of your spouse, and you are feeling angry, sad, and overwhelmed with emotion, take comfort in knowing that your feelings are normal and understandable – and hopefully, with time, will heal. While spying may be tempting, and while it may feel good to be vindicated in the short term, in the long term, spying can cause very real and lasting legal consequences. Try, if at all possible, to avoid it. If you find yourself in this position, consult with your divorce attorney, if you have one. Your attorney may be able to direct you toward other ways of obtaining information – hiring a private investigator, for example – that are legal. If you are in need of a divorce attorney, for this or any other divorce-related matter, at The Law Office of Dustin McCrary, we’re here for you. Call us soon.

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