Those who own and
use smartphones are likely aware of the lack of real privacy present in today’s
world. Perhaps you’ve noticed Facebook ads for items you previously Googled. Maybe
you were the victim of ransomware on your computer, resulting in a loss of
important documents.
These issues are particularly relevant
in family law cases. Family law attorneys see many forms of “spying,” perhaps
most often involving tracking devices attached to vehicles. These devices are
nondescript and easy to attach to a car or truck. Another issue family law
attorneys see is the tracking of a spouse’s location through a cell phone by
another spouse. If spouses share a cell phone plan, further monitoring may also
be possible.
The legality of spouses spying on
spouses is questionable, and the law has not progressed as fast as technology
has. In 1974, the Fifth Circuit Court of Appeals decided Simpson v. Simpson, which involved a husband attaching a recording
device to his home’s phone lines to try to catch his wife being unfaithful. The
wife sued the husband in civil court under a federal law called the Omnibus
Crime Control and Safe Streets Act of 1968. The court held that the Act did not
apply to the interception by a spouse of another spouse’s conversations in the
marital home because “it is clear that Congress did not intend to prohibit a
person from intercepting a family member’s telephone conversations by use of an
extension phone in the family home.”
In 2003, however, the Eleventh Circuit
Court of Appeals explicitly overruled Simpson
in a case called Glazner v. Glazner. The
court found that there was no exception under the Act, implied or otherwise,
that permitted “interspousal wiretapping” within a marital home. Nevada has its
own wiretapping law, NRS 200.620, which states that recording a phone
conversation requires both parties’ to the conversation to consent in order for
it to be legal, unless there is a court order or emergency situation involved.
In
terms of in-person conversations, NRS 200.650 prohibits a person from
“surreptitiously listening to, monitoring or recording, or attempting to listed
to, monitor or record, by means of any mechanical, electronic or other
listening device, any private conversation engaged in by the other persons, or
disclose the existence, content, substance, purport, effect or meaning of any
conversation so listened to, monitored or recorded, unless authorized to do so
by one of the persons engaging in the conversation.” This is an important
distinction. For someone to be recorded during a phone call, both parties to
the call must consent to the recording. But for an in-person conversation to be
recorded, only one person in that conversation needs to consent.
Recording
phone calls between a parent and a child has other considerations. For example,
in Pollock v. Pollock, the Sixth
Circuit Court of Appeals found that a former wife who recorded a phone call
between her former husband and their daughter was legal because the former
wife, as the parent/guardian of the child, was able to consent for the child to
the recording. The court stated that a parent may “vicariously consent on
behalf of a child” when the parent has a “good faith, objectively reasonable
basis for believing that it is necessary and in the best interest of the child”
to do so.
But
what about video surveillance? The Federal Wiretapping Statute doesn’t address
video surveillance, only “wire, oral, or electronic communication.” Nevada is
one of only a few states with specific statutes regarding video surveillance
(NRS 331.220, 393.400, and 396.970), but those address electronic surveillance
in state-owned facilities, public schools, and college campuses, not private
homes.
Massachusetts,
New York, and South Carolina have statutes prohibiting surreptitious video
recording of another person’s uncovered intimate areas, but only in a place
where an individual has a reasonable expectation of privacy. Does an individual
have a reasonable expectation of privacy from their spouse?
Courts
are undecided. In Simpson, the court
stated that a “third-party intrusion into the marital home, even if instigated
by one spouse, is an offense against a spouse’s privacy of a much greater
magnitude than is personal surveillance by the other spouse. The latter, it
seems to us, is consistent with whatever expectations of privacy spouses might
have vis-à-vis each other within the marital home.” This finding suggests that
the court believed spouses no not have a reasonable expectation of privacy from
each other.
The
New York statute (N.Y. Penal Law § 250.45) is much more specific. Unlawful
surveillance occurs when there is intent and a specific improper purpose,
including amusement, entertainment, profit, degradation, or sexual gratification.
Proving motive, however, in divorce cases may be difficult. While one spouse
could be surveilling another to catch that spouse being unfaithful, in court
the recording spouse could claim he or she was, for example, looking for
instances of financial misconduct or another reasonable purpose.
The
Georgia Wiretapping Statute (Ga. Code Ann. § 16-11-62(2)) makes it unlawful for
“any person, through the use of any device, without the consent of all persons
observed, to observe, photograph, or record the activities of another which
occur in any private place and out of public view” unless the device is used
for crime prevention. However, a videotape made for “security” or “crime
prevention” can be admissible in court without consent of the person
videotaped. In a 2012 cased called Rutter
v. Rutter, a wife installed hidden video surveillance cameras in the
marital home, where her husband was living. She argued that she installed them
to attempt to catch her husband committing child abuse. When the district court
allowed the videos into evidence, the husband appealed. The Georgia Court of
Appeals noted that the wife was most likely not trying to prevent a crime but
trying to catch husband doing something wrong solely to help her gain custody.
Regardless, the appellate court found that under the statute, it was
permissible for the wife to install video cameras to detect a crime, and that
the evidence was admissible.
The
law has caught up as far as emails. Federally, the Electronic Communications
Privacy Act applies to email, phone conversations, and other electronically
stored data. In Nevada, NRS 205.4765 prohibits and individual who copies,
accesses, or enters a program or documents that exist within another person’s
computer without authorization. The question is, however, if a spouse is an
owner of a device, or is on a cell phone plan, does that fit the definition of
“without authorization”?
With
modern technology, video surveillance may be the least of a person’s worries. A
GPS tracker could be affixed to a vehicle, allowing a person to track their
spouse’s movements. This may not be illegal on a jointly-owned vehicle. Some
cell phone apps can allow an individual to view another person’s text messages
and web searches. Parents have options to download programs to monitor their
children’s web and social media activities, which can be used improperly to spy
on a spouse if the other spouse has access to the device. Keyloggers go as far
as to track every keystroke made on a computer or electronic device. The U.S.
Justice Department has found that while only 1.5% of the general population
have been stalking victims, that number is significantly higher for divorced
and separated individuals – as high as 3.3%. Installing such spyware is
probably illegal, but it is difficult to prove since it would be installed on
the victim’s phone with no real way to determine who installed it.
Not
only can this surveillance have detrimental effects on an individual’s family
law case, research has shown it can have psychological effects as well. The
“ability to forget” past events is important to our decision-making abilities,
and the effect of having every action permanently recorded and on the internet
can impede that ability – hence the recent popularity of “mindfulness” and
“acting in the present.” The constant feeling of being watched can,
unsurprisingly, cause paranoia and anxiety.
What
can a family law litigant do to protect themselves? First, abstaining from
social media can be an important act while going through a divorce or custody
action. Next, it may be wise – especially in the case of a family cell phone
plan – to obtain a new phone on a new cell phone plan. As far as being
surreptitiously recorded, a forensic examiner can sweep a phone or home for
surveillance programs or devices. If you suspect you are being surveilled
during your litigation, an experienced attorney can present you with options to
protect your privacy.