Can I Tap My Spouse’s Phone?
What you need to know to avoid liability or criminal charges under federal and North Carolina wiretapping laws.
I Think My Spouse is Cheating…
You have that terrible feeling in your gut, your spouse is being secretive with their cell phone, they are coming home late from work, distancing themselves from you; the signs are all there, you just don’t have proof.
Or maybe you’ve recently separated and have reason to believe your spouse was cheating during your marriage.
How can you find out for sure?
Today it seems easier than ever to catch someone cheating. In our technology driven society, recording others has become as easy as tying your shoes. Cell phones come equipped with cameras, video recorders, GPS trackers, and voice recording capability. Tape recorders can easily be purchased at office supply stores at little cost, you can view a step-by-step video showing how to “bug” a room on YouTube, and a simple Google search will provide countless links to purchase spyware.
Despite what popular TV shows and movies may make you think, these sort of recording devices are not simply being used to catch drug dealers and mobsters; increasingly, people are using these devices to catch their spouses cheating.
Why hire a private investigator when you can catch them in the act yourself? The answer is not so simple, and may even carry criminal charges. If you are not careful, using voice recorders, spyware, and other “eavesdropping” devices might give you more legal trouble than relief.
How Can Evidence of Their Affair Help Me?
You may be wondering, aside from personal knowledge or peace of mind, why would evidence of an affair be of any importance? Would a judge really care if your spouse cheated on you?
This sort of evidence can in fact have a big impact in certain family law proceedings. For instance, where alimony is concerned, if the “supporting spouse” cheated, the court might be required to automatically award alimony payments to the other spouse. On the other hand, if the “dependent spouse” cheated, it might absolve the supporting spouse from having to pay alimony.
Occasionally, evidence of an affair can impact your case simply by giving you leverage. If your spouse knows you can prove marital misconduct, they may be more agreeable to reaching a settlement without litigation, or they may be more willing to compromise when it comes to splitting certain assets.
Evidence of an affair can also be of value if you plan to take action against the paramour. North Carolina is one of the few remaining states that recognize both alienation of affection and criminal conversation torts, and legally obtained evidence of the affair can substantiate these claims.
Bottom Line: Evidence of an affair can impact your case, regardless of whether you plan to litigate your issues or not.
Why Is Recording My Spouse Illegal?
There are both federal and state laws that prohibit recording and spying on your spouse. Without getting too bogged down in the details, here is a brief overview of the laws that prohibit you from “bugging” your spouse.
I. Federal Law
The Electronic Communications Privacy Act and the Stored Communications Act make it illegal to intercept or gain unauthorized access to certain types of information. There are two subsections we will refer to in this article. The first, referred to as “Title I,” discusses interception of wire, oral, or electronic communication. “Title II” deals with unauthorized access to electronic communications held in electronic storage.
Title I is implicated if you are using a voice activated recording device or certain types of email spyware, and Title II is implicated when you “hack” into your spouse’s email account. All of this is explained in more detail throughout this article, so don’t panic if this seems confusing.
II. State Law
The North Carolina Electronic Surveillance Act provides much of the same information as Title I of the federal law we just mentioned. It prohibits interception of wire, oral, or electronic communications.
North Carolina also has laws regarding computer-related crimes that prohibit unlawful access to another person’s computer, system, program, or network without authorization. This most closely mirrors Title II of the federal law.
Additionally, you need to be aware that North Carolina recognizes several privacy tort claims that may also apply. “Intrusion upon seclusion,” which is a fancy way of saying invasion of privacy, is recognized in North Carolina as grounds for a lawsuit. North Carolina also recognizes other torts that could apply depending on the situation, including trespass and intentional or negligent infliction of emotional distress.
Bottom Line: Not only can you be criminally liable for violations under federal and state wiretapping laws for recording conversations or accessing emails of your spouse, you can be sued under several recognized tort claims as well.
Can I Use a Tape Recorder to Catch My Spouse?
Many people consider using tape recorders or voice-activated recorders to catch their spouse. These devises are cheap, easy to use and inconspicuous. So why not hide one in your spouse’s car to try to catch them in conversation with their paramour? Because it is illegal.
North Carolina is a “one party consent” state, which means it is illegal to record a conversation without consent (here, “knowledge” = consent) of at least one party. What does that really mean? You may record yourself and your spouse in conversation because you have knowledge and have therefore consented.
No matter how unfair your spouse may find this, as long as you consent to recording the conversation between you two, the recording is not illegal and could be admissible in court. If they admit the affair to you, and you recorded the conversation, it is fair game.
The basic rule to remember is that you cannot record conversations between your spouse and other parties without consent (knowledge) of at least one the parties. Hiding a voice-activated recorder in their car, gym bag, or even in your own home to try to catch him or her with their paramour is illegal. As tempting as it may be to find out the truth about what your spouse is doing in your absence, this is a clear violation of both state and federal wiretapping laws and can be a very costly mistake.
Outside of catching them cheating, there are countless other reasons why using a tape recorder may be helpful to your case. For instance, if your spouse (or ex-spouse) is causing problems during custody exchanges, a tape recording of what took place could help you show your attorney and the judge the type of problems you are experiencing.
If you are a victim of domestic violence, it can be extremely helpful to your case if you have a recording of conversations where your spouse audibly becomes violent. You can probably think of countless other examples where this could apply to your own specific situation. Particularly in family law, it often comes down to he-said/she-said arguments and a recording of a conversation can help shed light on the problems you are experiencing. Just make sure you obtain this recording legally.
Exception to the Rule: Vicarious Consent
There is one exception to the basic rule, which applies if you are recording conversations between your spouse and your children. Several North Carolina cases have said that it is permissible to record your spouse and your children in your absence, so long as you are concerned for the safety of your children.
If you are suspicious of abuse, tape recording conversations between your spouse and your kids might be legal, despite the fact that none of the parties have consented. Keep in mind however, that you may have to defend this fear in court. Simply telling the judge you made the recording because you thought the kids were in danger isn’t enough: you will need to backup your suspicion by providing compelling evidence or the judge isn’t going to buy it.
Bottom Line: You may use a voice-activated recorder to tape conversations in which you are a party, however it is illegal to tape the conversations of others without consent (knowledge) of at least one party.
Can I Record My Spouse’s Phone Conversations?
Save for a few exceptions, the rules for recording phone conversations are identical to the rules we just touched on that dealt with using voice-activated recorders. As long as one party consents or has knowledge of the recording, it is permissible.
But again, you may not “bug” your home phone or your spouse’s cell phone and record conversations they have with others. It is of no consequence that the home phone belongs to you too, the law is designed to protect the communication; ownership of the phone, or even who pays the phone bill, is irrelevant.
The vicarious consent exception also applies to recording phone conversations, so if you are truly concerned for your children’s safety, you may record conversations between the children and your spouse. Again, be prepared to articulate to a judge why you believed your children’s safety was at issue.
What about recording or accessing voicemails? Courts have held that intercepting a voicemail is also a violation of the federal and state wiretapping laws. Voicemail is considered a wire communication held in electronic storage, which fits squarely within the language of the wiretapping statutes.
Cell Phone Snooping
Today, most of us have cellular or smart phones that house an almost unlimited amount of personal information. Smart phones give their users access to texting, calling, email, calendars, bank account information, and the list goes on.
Say you aren’t interested in actually recording phone calls, but are more concerned with browsing through the contents of their your spouse’s phone. Is this OK?
While there is no case in North Carolina that directly speaks to whether you may scan through your spouse’s cell phone in their absence, most attorneys agree that the permissibility of this would hinge on authorization. Keep in mind that Title II bans unauthorized access to certain information.
We discuss what “authorization” means in depth in the section discussing email access below, but essentially, if your spouse has given you reason to believe that you are allowed to use the phone for various things, you most likely have authorization to take a peek at its contents every now and then.
Example: Authorized Access v. Unauthorized Access
When your spouse is aware that you know the passcode to unlock the cell phone, you use the phone from time to time to make calls, check your joint bank account, pull up cartoons on Netflix for your child to watch, pay your cable bill, etc. you have authorization. Generally, your spouse has no expectation of privacy regarding the contents of their cell phone if they know you have the passcode and that you use the phone from time to time.
On the other hand, if you happen to correctly guess the password, or are able to obtain it without their knowledge, you do not have authorization to snoop through the phone.
What if there is no password on the phone? Our advice is that unless your spouse knows you have access to and have in the past used the phone, avoid browsing the phone’s contents in your spouse’s absence.
Bottom Line: You may record phone conversations in which you are a party to, however it is illegal to record conversations had by others without consent of at least one party. When it comes to cellular and smart phones, whether you can legally access the contents is largely dependent upon the authorization of the owner.
What About Video Recording?
After reading the previous sections, you may be wondering how “Nanny Cams” can be legal. You know, the stuffed animals with hidden cameras that parents use to monitor babysitters? These do not violate the wiretapping statutes, even if the babysitter has no knowledge of its existence.
Somewhat surprisingly, the rules regarding video recording are in fact different from the rules that apply to voice and telephone recording. Strangely enough, the federal and state wiretapping laws only protect the interception of oral communication like voice-activated recorders and phone tap systems. The statute does not ban video recordings.
This is precisely why “Nanny Cams” have no audio; it is permissible to record video absent an audio feed. As long as you own the property (or otherwise have permission), placing a video recorder may not result in a violation of the federal or state wire tapping laws.
Bottom Line: Video recording, with no audio, is permissible if you own the premises or have otherwise obtained permission.
Can I Sneak A Peek Into My Spouse’s Email Account?
So much of our communication takes place over email, so not surprisingly, this is usually what a suspicious spouse will want to tap into first. Most of us have multiple email accounts that are accessible anywhere, including on our cell phones and tablets.
It is also worth mentioning that because it is so easy to delete incoming and outgoing messages, the cheating spouse may actually find it a convenient medium to communicate with the mistress.
People ask us all the time if it’s OK to peek into their spouse’s email, and each time our advice varies depending on the situation. Let’s start with what we know you can’t do.
Spyware: Don’t Do It
It is so tempting; spyware is relatively inexpensive, easy to install, and a surefire way to catch your spouse if they are using email as a means to communicate with a paramour. There are many different types of spyware; some send copies of incoming and outgoing emails to your own email address, others track Internet browsing, and some are even designed to capture and store bank account login information.
People are attracted to spyware because not only can it discover scandalous emails or chats, but also it can provide access to calendars, and even potentially provide details about when and where he or she is spending money. So not only can you discover the illicit emails, but you can also find out when and where he is taking his mistress to dinner? Who wouldn’t want access to that sort of information?
As tempting as it may sound to uncover these details, using these programs is illegal.
Programs like eBlaster that are designed to forward copies of incoming and outgoing messages violate Title I because they intercept these messages contemporaneously with transmission. Use of this type of program violates Title I specifically because interception is simultaneous with transmission. In other words, no time takes place between the generation of the email and your interception of it.
Other types of spyware that are not designed to intercept messages simultaneously with transmission violate Title II rather than Title I, which we discuss below.
Title II covers unauthorized access to electronic communications held in electronic storage. In order to fully understand this, we need to break down each one of the italicized words above.
What does this mean? It sounds straightforward enough, but there are several points about authorization worth highlighting. Generally speaking, unauthorized access occurs when you either use a computer or a password without permission. Examples of unauthorized access are as follows:
Looking through a work computer.
This applies to computers at an office, or laptops for those who travel or work from home. The employer has given your spouse rights and permission to use that computer, and you do not have permission to look through it. This is especially important to understand because depending on their occupation, your spouse may have confidential information about their client’s finances, health, legal matters, etc. on their computer. Snooping on a work computer or going through work email is very dangerous because not only are you compromising the privacy concerns of your spouse, but also potentially violating confidentiality of their clients and coworkers.
Guessing a password.
You have been married 20 years, you know all of your spouse’s important dates (birthdays, anniversaries, children’s birthdays), you know the name of the street he grew up on, his social security number, the first car he ever drove, and his mothers maiden name. So you start guessing. You either guess the password or are able to correctly answer the security questions and gain access. Simply because you know enough about your spouse to guess their password does not mean you have authorization to log into their computer or email. This would constitute unauthorized access.
Your spouse is at a business meeting, he forgot to bring an important document he was hoping to give to a prospective client. He has a copy of it saved on his work laptop, which is at home. He calls you in a panic asking you to login, find the document, and send it to him; of course he gives you the necessary passwords. Great! Now he is on his way to making that big sale. But now you have the passwords. . . .and he was the one that gave them to you. . .so the next day when he is at the gym you decide you will just take a quick look through his email. In this case, he gave you the password for the limited purpose of sending him that document during his time of panic; that does not mean that he has authorized you to use it again later, for other reasons. If you go looking for incriminating information or emails, you have violated Title II because you have exceeded his authorization.
Authorization can be a tricky thing. If your spouse has given you an email password, or knows that you have it, and knows that you use it, and has not changed it, then you most likely have authorization.
What exactly “unauthorized access” means raises a slew of additional questions: what if there is a folder with all of your spouse’s passwords next to the computer? They haven’t specifically given you access, but you both know where the folder is and what it contains?
What if you were both open with each other about your passwords during your marriage, but then you separate and your spouse fails to change their passwords and then you start snooping? As you can see, unauthorized isn’t quite as straightforward as it seems.
When in doubt, we tell people to ask one question: “Does it feel like an invasion of privacy?”
Because there are not a lot of concrete answers when it comes to “unauthorized access,” positing this question to yourself is a good way to make an initial determination of whether or not you are pushing the boundaries.
Electronic Communications held in Electronic Storage:
What exactly this encompasses has been highly litigated, and several clear rules have bee defined by the courts. As an initial matter, we should make a distinction between email stored on a computer’s hard drive and emails that are saved in your Gmail account, for example.
If your spouse has physically saved emails to your computer’s hard drive, Title II does not protect these emails. The hard drive is not considered electronic storage.
Similarly, if you use certain Internet Service Providers for email (such as AOL), and the emails are automatically saved to your hard drive, they are also not protected. This tends to seldom be at issue however, because most people use email accounts not furnished by their internet service provider, such as Gmail, Yahoo, Hotmail, and the like.
There has been much litigation concerned with the meaning of electronic storage. The statute defines it as: “any temporary, immediate storage of wire or electronic communications incidental to the electronic transmission thereof; and any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”
What is interesting about this definition is that it does not include reference to post-transmission storage, which is where the email would be located after received and opened by the intended recipient.
So does this mean that if your spouse had already opened the email, and it was stored in his Gmail account, it is not protected?
While warranting a complicated analysis, the short answer is no, it is in fact protected. There have been several lengthy and detailed court opinions involving this issue, and ultimately it has been decided that emails, whether opened or not, are protected by Title II.
Another aspect to highlight with regard to the definition of electronic storage is that it limits it’s protection to emails either (1) stored incidental to transmission or (2) stored for backup protection by the electronic communication service (email provider).
What this means is that if your spouse creates a folder in his email account where he specifically saves incriminating emails, it does not fall under protection. The emails contained in such a folder are not being stored incidental to transmission or for purposes of backup protection by the electronic communication service.
So, oddly enough, while you may not legally have access to the sent mail folder and inbox, you could potentially legally access, without authorization, the folder where he has saved the emails.
Unauthorized access to the folder in which your spouse is manually saving emails is not protected under Title II. Be cautious, just because this type of access is not deemed to violate Title II, it does not mean you are absolved of all legal liability. Your spouse may still be able to sue under the privacy torts we mentioned earlier.
What if I look at my spouse’s email on his smart phone, instead of his computer?
The focus of this section has been about email, specifically. Do the rules change with regard to checking your spouse’s email on their phone? Checking email on a smart phone usually does not require actually logging in, so it must be different, right?
Authorization is still a key issue. If your spouse is aware that you know the passcode to unlock their iPhone, and that you use their phone from time to time, you probably have authorization to tap that email button and look around.
On the other hand, if you use your detective skills to guess the password, you do not have authorization and you are in violation. Still be wary of looking through work emails on the phone, because the same concerns regarding work email we just mentioned apply to email accessed on a smart phone as well.
Smart phones have undoubtedly added a new layer of complication to this already complex area. Before you act, go back to your instincts and ask yourself, “Does it feel like this snooping is an invasion of privacy?”
Bottom Line: Do not install Spyware on a computer or phone, and do not access your spouse’s computer or email without authorization. If it feels like you’re invading their privacy, you probably are gaining access illegally.
What About Snooping Through My Spouse’s Facebook Account?
Can you access this content without being in violation? The same analysis discussed with regard to email applies to snooping on a Facebook, Twitter, Google Plus, or other social media account. Some spyware programs will track and record Facebook chats and messages, as well as store passwords to give you easy access. This is unauthorized access, and illegal. If you have authorization, then you are not violating the wiretapping act by logging in and looking around. If you guess a password or correctly answer security questions to gain access, or use spyware, you are unauthorized and in violation.
The information you see on your spouse’s Facebook or Twitter “timeline” by using your own account, however, is fair game. Your spouse has no expectation of privacy with regard to information they are putting in a public forum. So if a paramour posts on their timeline, or an incriminating picture appears, you can certainly print it out and bring it to your lawyer. There are some issues regarding the admissibility of Facebook or other social media printouts, but those will be discussed in detail later in this article.
Can I Place a GPS Tracking Device On My Spouse’s Car?
Whether it is permissible to place a GPS on your spouse’s car to track their whereabouts is unclear. The Supreme Court had previously determined that, generally speaking, people traveling in vehicles have no reasonable expectation of privacy, and thus one’s whereabouts is not considered confidential information.
However, a recent Supreme Court case regarding the use of GPS tracking devices, U.S. v. Jones, added a new layer of complexity to the constitutionality of using these devices. Jones discussed GPS issues in the criminal procedure arena, specifically whether police officers could use GPS trackers to follow people without warrants.
Some attorneys believe that U.S. v. Jones bans people from using GPS devices to track their spouses, while others believe that U.S. v. Jones is inapplicable because it focuses on police activity. Some attorneys believe that because there is no law specifically prohibiting the use of GPS trackers, it must be legal. And yet other attorneys believe it comes down to ownership of the vehicle, and thus if your name is on the registration and title, then you can use GPS to monitor the vehicle.
While this is not a criminal law article, know that the Supreme Court thinks that the use of a GPS tracker without knowledge of the person being tracked constitutes a trespass. It is possible that courts taking up this question in the family law context may be inclined to feel the same way.
The appellate courts in North Carolina have yet to hear a case involving spouses using GPS trackers. Until then, proceed with caution. It is probably in your best interest to avoid using these devices until there are clearly defined rules. Even though there is no law that specifically bans the use of GPS tracking devices, your spouse could have claims for trespass and invasion of privacy.
Admissibility in Court – Email, Social Media, and Other Digital Information
If you have stayed with us this far, you are now an expert on what you can and cannot do with regard to snooping through your spouses phone, email, computer, social media and the like.
Now, how can you use that evidence that you legally discover in court? Do you print out emails and Facebook pages, or do you simply show the judge this information on your phone or laptop?
Our technologically advanced culture has certainly changed the landscape of legal evidence. We now have new types of media that we might want to bring to court, but the question is whether the law lets you use it against your spouse. What do you need to do to make sure the evidence you find is admissible?
There are some basic concepts that may be helpful for you to understand.
Attorneys must abide by federal or local rules of evidence, depending on where your case is being heard. Often, a major hurdle for attorneys is a concept known as “authentication.” Essentially, when an attorney authenticates a piece of evidence, he or she is proving that the evidence is in fact what it claims to be.
That sounds easy enough: the attorney should easily be able to prove to the judge that the printed emails you provided are in fact emails showing your spouse’s adultery, right?
The problem lies in the fact that altering email correspondence is easy to do. You can copy and paste the text of an email into a word document, and then change anything you want.
If your spouse sends you an email and you respond, you can manipulate their original message before you send your reply.
All it takes is a keyboard to change the date, time, or wording of any email before it is printed. Not to mention the fact that it is simple to create an email account using your spouse’s name, so it would appear your spouse was sending messages of a certain nature when in fact the email account does not belong to them.
All these possibilities are why technology has made authentication more difficult.
Here’s what you need to know:
Do not alter emails.
You may think it is going to help your case, but remember your spouse will have the opportunity to take the stand and argue that the email has been altered in some fashion. If your spouse has an attorney, the attorney will surely object to emails that they believe have been altered. If the judge believes you have altered emails that you are trying to admit into evidence, it can be fatal to your case.
While a judge may agree to look at emails you have on your phone or laptop under some circumstances, generally speaking this is a bad idea. When you legally gain access to emails that are pertinent to your case, print them out and provide them to your attorney.
Be prepared to answer questions you feel are unnecessary or self-explanatory.
Your attorney will most likely have prepared you for this, but he or she will have to ask you a serious of questions to lay a foundation, under to the rules of evidence, that will “authenticate” the email. You will need to identify the email address of both the sender and the recipient, names in the signature block and subject lines among other details.
The rules of evidence allow for an email to be authenticated by “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” Sometimes your attorney will need to authenticate emails by circumstance. For instance, if the email was in the same format as previous emails sent, if it was clear that the email was a reply to a previous email, if the sender, etc. would only know the substance of the email. Your attorney should let you know in advance if he is worried about authenticating emails, and if you’ll need to answer questions addressing circumstantial authentication.
Sometimes less is more.
Avoid bringing every adulterous email to court. If you have legally obtained the emails, you can provide your attorney with every message you found, but let your attorney pick which ones to use in your hearing. Most family law proceedings have time limits, and it is ineffective to spend so much time showing the judge a bevy of emails that prove an affair. A handful of such emails are probably enough, and your attorney will know which ones are best suited to use in your case.
Be prepared for objections.
If you are showing the judge emails that prove your spouse was adulterous, the other attorney will most likely object. Proof of an affair can be of crucial importance in certain family law proceedings, and your spouse’s attorney is going to want to keep this kind of evidence out at all costs. Try not to get flustered; your attorney should be prepared to handle the objections.
The same guidelines apply to the admissibility of printouts from social media. With both email and social media your attorney has to prove there exists sufficient confirming circumstances for a jury to believe that the printout is authentic. Absent obvious alterations, judges are typically lenient when it comes to allowing evidence of this nature to be admitted.
Text messages also generally abide by the same authentication rules as emails. If you have a printout or screenshot of exchanged text messages, your attorney will ask how the sender’s name is stored on the phone, what the phone number is, how you know the phone number to be associated with the sender, etc.
Again, it is better to have the text messages converted into tangible form. Showing opposing counsel and the judge the messages on the actual device can be problematic. You certainly want to avoid the text messages being accidently deleted by either attorney or by the judge while you are testifying.
Another evidentiary issue that can cause complications in admitting email and social media evidence is hearsay. Everyone has heard that word; it is thrown around on every television show and movie that depicts a courtroom scene, and most people think they know exactly what it means. However, hearsay is a very complex evidentiary hurdle that even experienced lawyers sometimes struggle to get past.
Hearsay is a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Generally, hearsay is inadmissible, however there are numerous exceptions and exemptions to hearsay. We won’t get into the nuances of hearsay right now, but know that it can be an obstacle when it comes to getting emails and the like admitted. If your spouse’s attorney objects on hearsay grounds, your attorney should be prepared to respond by either explaining why the email is not hearsay, or how it fits into one of the many exceptions or exemptions to the hearsay rule.
Violations: What is The Worst That Can Happen To Me?
So what happens if you are guilty of violating the federal and state wiretapping laws? Violations of these statutes can result in court ordered injunctions, civil damages, and/or criminal penalties.
I. Federal Wire Tapping Act:
Injunction: If you are a first time violator of this act, and you have not been found civilly liable for the violation, the court can impose and injunction. This means that you will be forced to cease audio-recordings, remove the spyware from the computer, etc. An injunction will force you to stop violating the law and is essentially a slap on the wrist. This is the least punitive of the possible sanctions.
Fine: If you have previously been found in violation of the Federal Wire Tapping Act, the statute provides for a mandatory $500 fine. If you continue to violate the Act, the court can impose a $500 fine for each subsequent violation.
Imprisonment: The statute also provides that in lieu of a fine, you can face up to five years of imprisonment.
Attorney’s Fees: If found in violation of this, you will have to pay attorney’s fees and general litigation costs of the opposing party.
II. North Carolina Electronic Surveillance Act:
If found in violation of this statute, you are guilty of a Class H Felony.
Damages: Compensatory damages are calculated at a rate of $100 per day, for each day in violation, or $1,000 total, whichever is greater. For instance, if you had spyware on your spouse’s computer for one year, the damages could be calculated as high as $36,000. North Carolina’s statute also allows for additional punitive damages, and reasonable attorney’s fees for opposing counsel.
III. Attorney Liability:
If you have obtained information in violation of either the federal or state laws discussed in this article, your attorney may also face liability. A shrewd attorney will begin questioning you regarding how you obtained the emails, recordings, etc. from the moment you first mention having possession of this sort of evidence.
If the attorney has knowledge that the information was obtained illegally, and looks at it or listens to it any way, he or she is equally liable and faces the same consequences that you may face. Attorneys found in violation of these laws have been criminally fined, placed on probation, forced to temporarily surrender his/her law license, and ordered to pay civil fines as well.
If you walk into your attorney’s office with emails proving your spouse’s adulterous behavior, do not be offended if your attorney immediately questions how the emails were obtained or refuses to read the emails. Your attorney is not being rude by declining to view these emails; he or she is simply absolving himself or herself of liability.
Don’t fret, often there are plenty of other ways to prove an affair without using illegally obtained evidence. Also, keep in mind that evidence of an affair, no matter how earth shattering it is to you, may not make a difference in your case depending on the issues you are litigating.
IV. Destroying Evidence:
This article is written more for a person who suspects a cheating spouse. But what if you are the spouse that cheated, and you know there are emails and Facebook content that can prove your affair? You are worried so you take down your Facebook page, or delete the incriminating content. Or maybe your attorney even suggested that you clean up your Facebook page in anticipation of discovery requests and litigation?
Until recently there has not been much attention given to people who delete, deactivate, or take certain things down from their social media accounts prior to litigation. However, there was a recent case in Massachusetts where an attorney was fined $522,000 for instructing his client to remove photos from his Facebook profile, and the client was fined an additional $180,000 for obeying the attorney. The case did not involve a family law issue, but it is out there and something for both attorneys and clients to be aware of.
Depending on the circumstances, altering your Facebook or social media content could be considered “spoliation of evidence,” which basically means destruction of some kind of material the other side would normally get from you during the course of litigation.
This a hot topic amongst attorneys right now, especially with regard to family law, because, as we have previously discussed, evidence of an affair can be important.
While we have yet to deal with this specific spoliation issue in North Carolina, attorneys and clients should be mindful of this potential issue and cautious to avoid liability.
Could I Really End Up In Jail?
So you know the limits of what you can and cannot do with regard to federal and state wiretapping laws, and what the consequences for both you and your lawyer can be.
You might be wondering if courts really impose these statutory sanctions. Sure, the statute says you can face jail time, but does that really ever happen?
It is unlikely that the federal government is going to bring a case against you for illegal surveillance of your spouse. Their efforts with regard to the wiretapping laws are obviously focused on anti-terrorism, organized crime, drug trafficking, and the like.
However, your disgruntled spouse may press charges, file a complaint against you under either statute, or sue you for common law tort damages. Your spouse may be more inclined to take this action if they are angry or embarrassed that they were caught, if evidence of the affair made a major impact on custody or alimony orders, if you have threatened to sue the paramour, or if they truly felt like their privacy was violated.
In July of 2012 a former Sherriff’s Deputy was forced to defend himself in civil court in Brunswick County, North Carolina for using spyware to monitor his ex-wife’s emails and Internet activity. After hearing only three hours of testimony, a jury awarded a verdict in favor of his ex-wife, and he was ordered to pay compensatory and punitive damages as well as attorney’s fees; the grand total was a whopping $25,400. So think twice before you install that spyware or plant recording devices to catch your spouse in the act, most of the time the consequences outweigh the potential benefit.
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