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If you and your spouse have reached the point in your marriage where you have decided to divorce, chances are that your relationship hasn’t been in the best place for some amount of time. In some cases, two people simply grow apart – but in other cases, there is unfortunately some kind of misconduct – an affair, an addiction, or something else in play. Sometimes, one spouse knows for certain about the other spouse’s misbehavior, but in other cases, it is simply suspected. When it’s merely suspected, it’s only a natural human instinct to want to find out more – to be able to either confirm or deny your suspicions. This leads many spouses to consider engaging in spousal spying. The question is – it is legal? It depends. Generally, it’s not a good idea to engage in spying no matter how tempting it may be. 

Although spying is not advised, the truth of the matter is that in today’s digitally connected, high-tech world – it’s easier than ever. There are spyware apps that can be downloaded to cell phones, keyloggers that can keep track of passwords and keystrokes on computers, GPS trackers that can be installed on cars – the list goes on. No longer do those who wish to spy have to hire a private investigator or physically track their spouse’s whereabouts by attempting to follow them, or ask others to do so. In fact, spying is pretty easy – and the fact that it’s easy can make it tempting. It’s important, however, to try as hard as you can to avoid that temptation.

First and foremost, if you are considering spying, you should be aware that there are both federal and state laws that make certain types of spying a crime. If you are not an attorney or a law enforcement officer familiar with these laws, you could quickly find yourself in legal trouble. And let’s be honest – that is the last thing you need when you were undergoing the already stressful process of divorce. Some of those laws include: 

  • The Electronic Communications Privacy Act (ECPA): The ECPA is a federal law making it a crime to access someone else’s private communications without their consent. What types of “communications” are covered? The Act refers to “oral or wire communications with an electronic device.” While that may sound confusing, it essentially means that if you are using an electronic device to communicate – whether it’s a computer or tablet to send an email, or a cell phone to call or text, voiceover IP, or other electronic methods of communicating, you have a right to expect privacy when making those communications. Understandably then, this means that your spouse does too. Unless your spouse has permitted you to access those communications, you should not try to do so to keep yourself out of potential legal trouble. 
  • The North Carolina Electronic Surveillance Act: In North Carolina, the North Carolina Electronic Surveillance Act is very similar to its federal counterpart, and makes it illegal in the state of North Carolina to seek access to another person’s computer, phone, or network without authorization. 
  • State Tort Law: North Carolina also has a number of tort laws protecting privacy. For example, one such law is known as “Intrusion upon Seclusion” – this essentially means that invading someone else’s privacy is recognized in North Carolina as valid grounds for a lawsuit.

Clearly, there can be significant legal consequences for spying. To make it even more confusing, as with any legal matter, there are different exceptions and different nuances that might apply. For example:

  • Your spouse may have given you their email or phone password. You may wonder if having the password means that you’re free to access their devices whenever you want. Often, it depends on what purpose the password was provided for, and what expectation your spouse had when providing it. 
  • You may share a social media account. You may wonder if this entitles you to read and review any private messages your spouse sends from that account. Like providing a password, sharing an account generally indicates a willingness to share information to some degree – but the exact limitations of that freedom can be confusing. 
  • You may wonder if you can record your spouse during a conversation you are having together – and you may wonder if this applies to both conversations over the phone and in-person. Generally, you can record conversations that you are a part of – but conversations that you are not a part of are far more legally complex and confusing. 
  • You might wonder if it’s legal to install recording devices or cameras in your home. Whether or not this is legal may depend on your spouse’s awareness of and consent to the installation of those devices, and there can be several gray legal areas.

Understandably, all of this information can be discouraging and confusing if you are a spouse who suspects that your husband or wife is cheating on you, or engaging in some other sort of harmful misbehavior. The good news though, is that you aren’t without options. If you suspect misbehavior, you always have the option of talking to your attorney, who can discuss your options with you and give you clarity as to what is legal and what is not. Another option might be using a professional private investigator. A professional who understands what types of spying are legal and which are not can be quite helpful in gathering the information you need, without engaging in illegal behavior that could have significant consequences. Hiring such a professional and speaking with your attorney before taking any action is always advised.

If you find yourself at a place in your marriage where you have decided upon or are considering divorce and suspect spousal misbehavior, and you want the advice of a knowledgeable and experienced attorney, at The Law Office of Dustin McCrary, we’re here for you. We understand the law, and we are proud of our record of helping our clients find the peace of mind they need to move forward in a legally sound way. We are here for you, and we would welcome the opportunity to help you soon.


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