It shows up in both movies and real life all the time: a stray text message, Facebook chat, or email is seen by the recipient’s husband or wife. A secret is exposed that blows up a marriage or relationship. Whether you have a solid reason to suspect your spouse is cheating or are just feeling suspicious or insecure, it seems that technology has made it easier than ever to check up on your spouse’s activities. With all of the resources available – nanny cams, GPS tracking devices, spyware, voice recorders, etc – it is sometimes difficult for both lawyers and clients to know what kinds of spying are admissible in court, and more importantly, which ones are legal for you to use. If you are determined to look for proof of infidelity or other bad behavior by your spouse, you must be careful about the methods you use – some forms of snooping and eavesdropping could expose you to criminal charges. There are both federal and state laws that limit the ways you can check up on a cheating spouse.
The Electronic Communications Privacy Act (ECPA) of 1986 extended certain wiretapping laws to cover electronic data that is transmitted by computers. It makes it illegal to intercept or obtain unauthorized access to certain types of information. Two subsections of this law are important in the context we’re discussing. Title I applies to the interception of wire, oral, or electronic communication. Title II applies to the unauthorized access to electronic communications that are already held in electronic storage.
You might reasonably think that federal wiretapping statutes are aimed at controlling how the government can investigate terrorism or racketeering. That’s true, but they can also apply to a private citizen trying to catch a cheating spouse. Title I is implicated, for example, if you use a voice recorder to tape a phone call or some form of spyware to intercept your spouse’s emails. Title II is implicated if you “break in” to your spouse’s email or Facebook account.
North Carolina has an Electronic Surveillance Act that provides much of the same protection as Title I – it prohibits interception of wire, oral, or electronic communications. We also have laws that are similar to Title II and prevent unauthorized access to another person’s computer, system, program, or network.
State law also provides several privacy-related tort claims that your spouse could possibly bring against you if you access his or her communications without permission. Intrusion upon seclusion is one claim; others could potentially include trespass and intentional or negligent infliction of emotional distress.
In the next few blog posts, I’ll discuss how these laws may apply to specific methods of spying on your spouse. In the meantime, the most important takeaway is to know that certain types of snooping are illegal and some might expose you to lawsuits. Before you do any questionable snooping, research what the law says and talk to your lawyer.