Keylogging is a term that comes up frequently in North Carolina divorce cases. It can turn a simple case into a complicated federal dispute.
What is keylogging?
Are you wondering what your spouse is doing on his or her computer? That’s a question that gets asked by most spouses going through a divorce in North Carolina. Keyloggeers the tool used by spouses to spy on their spouses use of the computer.
Keystroke logging, otherwise known as “keylogging,” is a way to secretly record each key struck on a keyboard. A person who installs a keylogger on a computer gains access to a plethora of information.
Imagine having access to every single key someone strikes on a computer?
You’d know every movement someone made on a computer from websites visited to login and password information. Essentially the key loggers prevent people from hiding any information.
Even though you clear your Internet history, delete emails, change passwords, etc. the key logger records everything. Once the keylogger records this information, you can structure it so a daily, weekly, monthly, etc. email gets sent to you with all of the recorded information.
Why would you use this?
There are several reasons why people are attracted to keyloggers. As a parent it could be incredibly appealing to take comfort in knowing every move your child makes on the computer. Even if you have installed parental control programs that limit website your children can visit, these programs can’t possibly catch everything. A savvy teen can find ways to navigate around these programs, so keyloggers are attractive because they can still give you access to what your children are looking at and emailing or chatting about online.
One of the most common uses of keyloggers is in the employment context. Employers use this type of surveillance to monitor what their employees do on work computers. Keeping tabs on the websites your employees are visiting on a work-issued computer is a sure-fire way to make sure they are working as efficiently as possible.
The keylogging use most pertinent to this article is spouse-surveillance in North Carolina. What if you suspect your spouse might be having an affair? Maybe you have access to his email account but he’s smart enough to delete those incriminating emails?
A key logger still records all of the keys he strikes on that keyboard, so you would still have access to the content of those emails. The key logger also records the keys he strikes while he logs into financial institutions.
Imagine that your husband has a secret bank account? Maybe he’s using that money to purchase his mistress meals, take her on vacation, and buy her lingerie? Key loggers give you access to all of this information.
How Does It Work?
There are two types of keyloggers; they can either be software-based or hardware-based.
Software-based keyloggers target a computer’s actual operating system and can even be attached to a computer remotely; it is a type of spyware. There are various different types of software keyloggers that achieve the same goal through different methods. The different types are known as hypervisor-based, kernel based, API based, form grabbing based, memory injection based, and packet analyzers. Without getting into the complex details of what distinguishes these various types of keyloggers, it is worth noting just how many different types there are.
Remote software keyloggers can be used to access someone’s computer from afar, without their knowledge.
Some computer viruses, like the infamous Trojan Horse, use remote software keylogging technology to maliciously and surreptitiously steal sensitive information. Once the Trojan Horse is remotely enabled on a computer it allows access to all sorts of sensitive information. These viruses that use keylogging technology are frequently referred to as “malware.” Interestingly enough, private individuals wishing to monitor a spouse’s computer activity can do so using the same technology that allows hackers to steal confidential information.
Remote keyloggers may be especially attractive to a spouse who suspects a workplace affair. This technology allows you to “bug” your spouse’s office computer without you even needing to lay eyes on the computer or gain access to the office.
This type of keylogger can capture the same type of information that a software keylogger can, but it does so via a different method. To enable a hardware-based keylogger one must use something called a “BIOS-level firmware” or plug a device into the computer. These devices intercept and record keystroke data. Rather than receiving emails reporting on the computer activity, installers of hardware-based keyloggers gain access by typing a special password into a text editor on the computer. A correct password will generate a menu allowing the installer of the keylogger to navigate the recorded computer activity.
There are several versions of hardware based-keyloggers. Some look like jump drives that plug into USB ports, others can retrieve information from wireless keyboards, some use firmware, and there are even keyboard overlays.
Pros and Cons
- Accessibility: Software-based keyloggers are especially attractive to those who wish to spy on a computer remotely. For instance, a curious husband can remotely monitor his wife’s activity on her office computer, or a parent can use this to remotely gain access to their child’s laptop.
Hardware-based keyloggers require physical access to the computer somewhat frequently. You will need access to install it, and again each time you will want to retrieve information. So this might be a good option for a home computer, but not practical if you want to monitor a computer you cannot easily access.
- Countermeasures: Users of software keyloggers can easily be halted by anti-keylogging software designed to detect and alert a user of the existence of the keylogger.
Some prefer hardware-based keyloggers precisely for this reason – they cannot be thwarted by anti-keylogging software. Because hardware keyloggers refrain from interfering with the operating system, they are not detectable by anti-keylogging software. The only way to prevent someone from using one of these is to simply deny physical access to the computer or visually inspect the computer before using it.
Where can I get a keylogger?
A quick Google search can pull up countless products, and they are fairly inexpensive. For instance, you can purchase remote keylogger software from “Keylogger Pro” for a mere $39.99. This product’s advertising boasts that it can record keystrokes on any keyboard, even foreign keyboards. Not only does this remote key logger record keystrokes, it can also provide high-resolution screen shots of user activity. Hardware keyloggers sold on amazon.com range in price from $33 to $180.
Keyloggers.com is a website solely devoted to helping you find the best keylogger for your needs. Here you can find user reviews, pros/cons of various keylogging products, pricing, and very detailed explanations of exactly what each product is capable of.
As you can see, these programs and devices are easy to purchase, fairly inexpensive, and can give you access to all sorts of information.
Are keyloggers legal?
1. Federal Law
There are two federal laws that could potentially be implicated with regard to keyloggers, and the legality of these programs and devices has been the topic of some recent litigation.
Title I of the Electronic Communications Privacy Act
Title I of the Electronic Communications Privacy Act (“ECPA”) provides specifically that one who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication” faces both criminal and civil liability. The important most important word in this definition arguably being “intercept;” interception must be contemporaneous with transmission.
Title II of the Electronic Communications Privacy Act
Title II of the Stored Wire and Communications Act imposes criminal and civil liability to those who intentionally gain unauthorized access to electronic communications held in electronic storage.
2. North Carolina 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. The same issues with interception being contemporaneous with transmission exist when applying this law to keylogging.
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.
How does this play out in reality?
In 2011 an Indiana woman sued her employer for using a software-based keylogger to access her emails and personal checking account information. She unsuccessfully argued that her employer violated Title I because they intercepted her keystrokes, which ultimately gave them access to her email and bank account login information and content. The court focused on the requirement of interception being contemporaneous with transmission, and in this case found that the Indiana woman failed to prove that the sensitive information was in fact recorded contemporaneous with transmission.
The court went one step further and also found that typing on a keyboard did not constitute electronic communication. The statute specifically describes such communication as that affecting interstate or foreign commerce. The court opined that because the software didn’t transmit the recorded keystroke information beyond her office computer, there was no way interstate commerce could have been affected.
Courts have struggled with the concept of interstate commerce and it’s application to the definition of electronic communication. Some have found that if the computer is connected to a modem and a network that is enough to satisfy an affect on interstate commerce. Other courts have disagreed completely with this analysis.
A 2013 North Carolina case disagrees with the ruling in the Indiana cased mentioned above. That opinion specifically states that the interpretation of electronic communication used previously was too narrow. Here the judge explained that the whether there was an affect on interstate commerce should be with regard to the content of the actual communication, and not the way it was intercepted.
While courts have been reluctant to find that keyloggers violate Title I of the ECPA, the future is uncharted territory. Last month’s opinion could indicate a shift in federal court’s attitude towards keylogging, but as it stands it seems hard to be found to have violated Title I by using a keylogger.
In the case of the Indiana woman discussed above, while her Title I claim was unsuccessful, her Title II claim was preserved. If it can be proven that the keylogger allowed an individual unauthorized access to electronic communications held in electronic storage, that individual has violated Title II via the keylogger.
The problem with applying Title II to keyloggers, is that courts have been all over the place with regard to how to treat emails whose content was obtained through use of a keylogger. There is conflicting opinion as to whether it matters it the emails had been opened and whether they were stored manually or saved by the Internet service provider.
So are they illegal or not?
There exist numerous law review articles devoted to the need for reform in this area. There have been several proposed spyware bills that have attempted to address the lack of consistency with regard to keyloggers and loopholes that currently exist. The reality is that as it stands, there are gaps in Title I and Title II, and a myriad of conflicting opinions, which make the question of federal liability unclear.
Our advice is to proceed with caution. This is an area of the law with a lot of unknowns. With regard to federal law, the answer to the question of the legality of keyloggers is very unclear. Some courts read the statutes narrowly, others more broadly. Until there are clearly defined rules, either through judicial opinions or legislation, it is unclear whether use of a keylogger will result in liability under Title I or Title II.
Even if you aren’t found to have violated a federal law, you can still be found guilty of violating the state law addressing computer related crimes, and you may face liability with regard to common law tort claims.
Because use of keyloggers can implicate several state and federal laws, we advise you to stay away from using keyoggers to catch your spouse in the act of cheating.
More on Spousal Spying –
Wiretapping, Recording, Email Interception and GPS Tracking
Using a Keylogger in a North Carolina Divorce