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Without question, we live in an advanced digital age. Our world is a world full of “smart” technology – smart phones, cars, televisions – even smart homes.  In many ways, this is a wonderful thing.  We are more connected than ever before, and we can obtain our news faster than ever before.  Business moves at a faster pace, and ideas circulate seemingly in an instant.  While these benefits are wonderful, all of this advanced technology is not without its downsides too.

One of those downsides is that while technology allows us to be more connected than ever before, sometimes, it also makes it possible for us to be too connected – for those who want to eavesdrop, spy, and obtain information about others without their consent to do so with relative ease. While this may be tempting in many circumstances, the temptation can be particularly strong between spouses in a troubled marriage.  After all, it’s only natural to want to know the things you don’t know.  It’s natural to want to confirm or deny your suspicions, particularly if you suspect that your spouse may be having an affair or engaging in another destructive behavior and hiding it from you.  These desires are understandable and natural, but that doesn’t necessarily mean they should be acted upon.

Certainly, people have always been able to spy on one another. Traditional methods like tracing, wiretapping, or hiring a private investigator are nothing new.  With the advent of advanced, smart technology however, spouses are able to spy on one another more easily, and more frequently, than ever before.  As they say, there’s an “app” for almost everything. Not only can you install spyware on a phone or a computer, you can also hide video cameras around the house, and secretly place a GPS tracking device on your spouse’s car. But simply because you can do so, it doesn’t mean you should.

While the temptation to spy on your spouse may be strong, and in many cases is certainly understandable, it should also generally be avoided.  Both federal and North Carolina state law prohibit certain forms of spying.  It is important to understand the laws that apply to spying, and to follow them. Spouses who are attempting to gather evidence to support their position in a divorce case may unwittingly expose themselves to criminal and civil liability for engaging in these activities.  Divorce is already a difficult process – there is no need to make it more so.

What Does Federal Law Say About Spying?

The first federal “eavesdropping” law regarding the use of telephonic communications was the Federal Wiretap Act of 1968.  This original ban on wiretapping was intended to protect a person’s privacy while using the telephone lines.  Needless to say, at that time, legislators could not foresee our digital world of today – emails, cellphones, chatrooms, voiceover IP – none of these things were a reality at the time this legislation was initially enacted. Today, legislation has evolved along with our digital world, and the Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act are commonly referred to together as the Electronic Communications Privacy Act, or ECPA. These laws are federal laws which prohibit certain types of electronic eavesdropping.

Essentially, the ECPA includes penalties for any person who intentionally:

  • Intercepts, uses, or discloses any wire or oral communication by using an electronic, mechanical, or other device; or
  • Accesses a wire or electronic communication while in storage without authority.

Stated simply, the ECPA makes it illegal to record or eavesdrop on communications that your spouse makes without his or her consent. Prohibited behaviors would include wiretapping phone lines, installing spyware on a spouse’s computer or phone without their knowledge, “hacking” into your spouse’s email account, and other similar actions taken without a spouse’s knowledge for the purpose of intercepting their communications.

Of course, if your spouse authorizes you to read or listen to their communications, then violating the law is not a concern.  Unfortunately, however, whether or not your spouse has “authorized” you to read or listen to their communications ban become surprisingly confusing, and can be very much a gray area.

As with many legal matters, consulting with a knowledgeable and experienced attorney who understands the complexities of the law and how it might apply to your particular circumstances. Courts generally decide these matters on a case-by-case basis.  Generally, however, to determine whether your access to your spouse’s communications is “authorized” or not, it is helpful to ask whether the actions you are taking feel like an invasion of your spouse’s privacy.  If the answer is yes, it would be best to avoid taking them.

North Carolina’s Privacy Laws

The North Carolina counterpart to the federal law on spying is called the North Carolina Electronic Surveillance Act.  It prohibits interception of wire, oral, or electronic communications.  North Carolina also has laws regarding computer-related crimes which prohibit unlawful access to another person’s computer or network without their authorization.

In addition to these federal-law counterparts, North Carolina also recognizes several privacy tort claims that may also apply to instances of spousal spying.  “Intrusion upon seclusion” is one such cause of action, which essentially prohibits invasion of privacy.  North Carolina also recognizes other causes of action which might apply depending upon the situation, including trespass and intentional or negligent infliction of emotional distress.

Addressing Specific Actions – What Can and Can’t I Do?

As attorneys, we certainly understand that the law can be complex.  While most people can read a statute or a legal opinion, what they really want to know is how that law applies in their everyday lives.  If you’re thinking of taking any of the following actions to spy on your spouse (or if you think you’re being spied upon), here’s what you should know:

  • Tape-recording your spouse: Many people consider using tape recorders or voice-activated recorders to catch their spouse engaging in undesirable behaviors.  After all, they are easy to use, easy to conceal, and inexpensive.  Doing so should be avoided, however. North Carolina is known as a “one party consent” state.  This means that it is considered illegal to record a conversation without the knowledge and consent of at least one party. So, while you could record a conversation between yourself and your spouse (because you would know and consent), you cannot record the conversation of two people who are unaware that you are recording them.
  • Recording your spouse’s phone conversations: The rules for recording phone conversations are nearly identical to the rules with respect to using tape recorders. If one party consents or has knowledge of the recording, it is permissible, but you may not “bug” your home phone or install

recording spyware on your spouse’s cell phone to record conversations they have with others

without their knowledge.

  • Installing a GPS tracking device on your spouse’s car: North Carolina General Statute §14-196.3(a)(1) defines an “electronic tracking device” as “[a]n electronic or mechanical device that permits a person to remotely determine or track the position and movement of another person”. Many people want to know if they can place a GPS tracking device on their spouse’s car without their knowledge for the purpose of tracking their whereabouts.  While this desire may be understandable if you suspect your spouse of misconduct, you should be aware that the law prohibits placing an electronic tracking device on a vehicle driven by your spouse if that vehicle is not titled in your name. North Carolina’s Cyberstalking statute, found in North Carolina General Statute §14-196.3(b)(5), specifically prohibits a person from installing, placing, or using an electronic tracking device to track the location of a person without his or her consent. An exception to this rule is if the vehicle is titled or leased in your name. In that case, you may install such a device on your own vehicle.  Otherwise, if the vehicle is in your spouse’s name, this should be avoided.
  • Installing a keylogger on your spouse’s computer: A keylogger is a tool that allows you to spy on your spouse as they type on the keyboard. The keylogger records exactly what your spouse types in to their computer, even if your spouse clears their browser history or uses password protection.  Again, while this may be tempting if you suspect your spouse of wrongdoing, it should be avoided. Under federal law, and under the North Carolina electronic surveillance act, you may face criminal charges if you intentionally intercept or try to intercept the wire, oral, or electronic communications of others without their permission.  It is always wise to consult with an attorney prior to taking any such actions.

What Are the Penalties if I am Found to Have Violated the Law?

If you are found guilty of violating the federal and state wiretapping laws, any number of possible penalties might apply.  If you are convicted of violating the federal act, punishments may include:

  • Court-ordered injunctions (a court order to stop you from continuing to engage in a certain behavior);
  • Civil damages (usually monetary fines)
  • Criminal penalties (including jail time).

Of these penalties, injunctions are usually the least severe, and require ceasing the prohibited behavior.  Fines are often assessed for those who have previously been found in violation of the federal law, and can include fines in the amount of $500 per violation.  The statute also provides that in lieu of a fine, those violating the law may face up to five year’s imprisonment.  It is also a possibility that you may be ordered to pay the fees of your spouse’s attorney and costs of the lawsuit as well.

Those who violate the North Carolina Electronic Surveillance Act also face significant penalties, including having a Class H felony on their permanent record.  Under this Act, damages are calculated at $100 per day for each day of violation, or $1000 total, whichever is greater. North Carolina law also allows for punitive damages as well as reasonable attorney’s fees for opposing counsel to be paid by those found to have violated the statute.

How to Protect Your Privacy

While the majority of this article discusses why not to spy, it is certainly true that some reading this article may not be contemplating spying, but may instead believe that they are potentially being spied on by their spouse.  If so, there are some simple steps you can take to protect yourself from spousal spying.  These steps include:

  • Changing your passwords;
  • Setting up a separate phone line and/or email for communications with your attorney;
  • Suspending social media use and activity until after your divorce;
  • Regularly monitoring your location and privacy settings;
  • Check your phone and other devices regularly for the presence of any unfamiliar apps.

Following general guidelines like these can help you protect your privacy and give you needed peace of mind throughout the divorce process.

Why You Need an Attorney

Understanding and being aware of certain actions that you can’t take is important – but it doesn’t diminish the fact that you may be angry about your spouse having an affair, and it doesn’t change the fact that you’d like to use that evidence in your favor during the divorce process.  This is understandable, and certainly, proving marital misconduct can be important during a divorce.  In fact, this sort of evidence can have a significant impact on various parts of the divorce including how much alimony is paid, what decisions the court makes about custody and property distribution, or even simply to give yourself leverage in the case on issues that are important to you.  After all, if your spouse believes that you can prove marital misconduct, they may be more agreeable to reaching a settlement or compromising on key issues.

Additionally, it should be noted that North Carolina is one of the few remaining states in the country in which evidence of an affair can also be of value if you plan to take action against your spouse’s lover, or the third party who helped cause the end of your marriage. North Carolina is one of the few remaining states that recognize both alienation of affection and criminal conversation actions, and legally obtained evidence of the affair can help to support these claims.

While this is true, and while having evidence of misconduct can be beneficial, as this article proves, it is very important that such evidence be collected in a legal manner.  An attorney with knowledge of the law and experience in family law matters will be able to help advise you as to the legality of your actions, and how to best collect the evidence to support your case. In certain circumstances, you may be able to utilize the services of a private investigator or other evidence collection methods that are helpful and within the bounds of the law.

Call the Law Office of Dustin S. McCrary Today

At the Law Office of Dustin McCrary, family law is our passion.  We are here to help our clients through the divorce process every step of the way.  If you are in a position where you are considering spying on your spouse, or believe that your spouse has been spying on you, and you need further clarification on this matter, we are here to discuss that issue with you, and any others that may arise during the course of your divorce.  We would be honored to represent you and to help your family through this time so that you come out on the other side healthy, happy, and ready to begin a new chapter.  Call us today.

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