Spousal Spying FAQ

The 6th Circuit Court of Appeals has stated that parents may in good faith give their consent before their children’s conversations can be recorded. Such an action was deemed necessary in order to protect the welfare of the child involved. On the other hand, the 4th Circuit Court of Appeals, which has North Carolina under its jurisdiction, does not have such a clause. But here is the truth: The taping of a child’s conversation potentially violates the Electronic Communications Privacy Act (ECPA). So, also taping a child’s telephone conversation with another parent would also violate North Carolina state criminal law (G.S. 15A-287). However, listening in on your child’s communication on another phone at your home is not considered illegal or criminal: This is termed the “extension line” exception to the ECPA. It is believed that it is not illegal to monitor a conversation that you could otherwise have heard legally. Though, the federal courts differ on this opinion, wondering whether it was proper to record such a conversation. You must be careful about this issue because it amounts to taking unnecessary risks.

Under North Carolina law, it is not illegal to record your own telephone calls since the law only requires one party be aware of the recording.

However, it is illegal to:

• Record other people’s phone calls without letting them know about it — in other words, you are breaking the law for recording the telephone conversations between your spouse and a third party.
• Record phone conversations between two people when one of them is out-of-state. You may inadvertently be breaking the law of that state.

When in doubt, always ask your attorney for advice about this issue.

According to the principle of the Electronic Communications Privacy Act (ECPA), you must respect your spouse’s expectation of privacy. However, if your spouse gave you his or her password to check emails, you should only use the password for that purpose. For instance, if your spouse allows you to check just one email, do not go beyond that defined authority and begin to access all of his or her emails. That would constitute violating ECPA, and you may be punished or prosecuted for such behavior if your spouse chooses to take the matter to court.

Eavesdropping on people or intercepting their communications has dire consequences. Electronic Communications Privacy Act (ECPA) violations can lead to both civil and criminal penalties. Any or both of these penalties can be financially damaging.

If you are caught breaking ECPA:

• You can be asked to pay damages to your victim, and the damages are calculated based on each day of the continuation of violation.
• You can be ordered to pay your victim’s attorneys’ fees, which may be higher than the damages.
• Other punitive measures can be imposed on you, including a term of imprisonment not exceeding 5 years, if your actions caused serious malicious damage to your victim’s life.

In addition to the federal law, there are also state laws penalizing people eavesdropping on the others. North Carolina General Statute Section 15A-287 criminalizes the act of willful interception, use or disclosure of the contents of any oral, wire, or electronic communication “without the consent of at least one party to the communication.” This offense is also referred to as a Class H felony. And you can be sued under North Carolina common law for an “invasion of privacy.”

With a lack of clear and uniform interpretations in federal courts, the law guiding privacy in electronic communication is indeed complicated. However, there are some fundamental guidelines you can use to ascertain if Electronic Communications Privacy Act (ECPA) violations have occurred or not. The first thing to consider is that there must be “justifiable expectation of privacy.”  This indicates that a reasonable person expects his or her telephone communication and personal email to be private.  Any illegal access into his or her telephone conversations or private email will be judged an ECPA violation. On the other hand, it is impossible to assume that a joint email account or a piece of information placed on a public bulletin is private. In the same way, it is difficult to state if chatroom discussions are private or not. Some chatrooms expect each user to have his or her own password. That may be considered private. Even though each user has his or her own password to sign in, some users can still log into the same server as “guests,” so there is every possibility that someone’s privacy may be breached and there may be no guarantee of privacy for all the users.

The Internet is an open world with its own risks and dangers. Some private individuals or hackers may be paid to mount electronic surveillance on you. The first thing you should do is to secure your computer. You do not necessarily need to have any technical knowledge or programming capability to do this. All you need to do is to install firewall software, password protection and encryption software on your computer. Firewalls can shut out unwanted intruders or hackers from getting into your computers; password protection software is integrated in most email services; and the encryption technology is designed to prevent unauthorized access and illegal tampering with your electronic information — for any hackers to gain an entry into your data, they must first decrypt the code utilized by the encryption software. If, at any time, you discover that your electronic data has been breached, you can invoke the Electronic Communications Privacy Act (ECPA) and file a lawsuit for the exact damages, injunctive relief to stop the intrusion, attorneys’ fees and request for punitive damages. This lawsuit should be filed within two years after the date upon which you had a reasonable knowledge of the ECPA violation. The other legal actions available to you are a civil lawsuit and criminal charges for privacy invasion under North Carolina law.

The law allows you to use stored electronic communication that you have accessed, but you may not use any information obtained through the process of “interception.” Some courts have clarified “interception” to mean the process of accessing communications as they are transmitted. This may include placing a wiretap on a phone, hiring a computer expert to monitor your spouse’s online conversations, or breaking into your spouse’s cellphone through the backdoor to eavesdrop on his/her conversations.

You may not use any evidence obtained through interception in your divorce. You cannot even share it with anyone in any way. You may be culpable for criminal punishment and asked to pay damages for your illegal actions. People who have heard evidence obtained through interception may be implicated and prosecuted.

Your spouse giving you his or her email password may be considered “consent.” This is a vital aspect of the Electronic Communications Privacy Act (ECPA). The main purpose of ECPA is to dissuade people from using, disclosing or intercepting unauthorized information. The courts normally discuss the issue of consent case-by-case. Consent can be explicit or implied. But there is a gray area: If your spouse supplies you with his or her email password, it is advisable that you check with an attorney before accessing the account. This will save you from the avoidable error of being accused of mining unauthorized information from your spouse’s email account.

The law applies to obtaining spousal communication through voicemail systems, traditional phone wiretaps, web-streaming video, cordless telephone interceptions, chat logs, emails, Voice over IP, and videotaping or recording of private face-to-face conversations. As a matter of fact, the law covers all other forms of communication, in addition to those already listed above.