Maybe your spouse or significant other is coming home late and not spending as much time with you as they used to. Maybe they seem distracted or are acting secretive. Maybe they are getting unexplained late-night calls or text messages. Or maybe you are going through a divorce and suspect that your spouse has been having an affair or is hiding marital assets. Whatever the scenario, you get the feeling that something just doesn’t feel right and want to find out what’s really going on. At this point it may be tempting to do a little spying on your spouse or significant other, but depending on how you go about it, it could be legally dangerous and might even land you in prison.
“Spying” can cover a wide range of activities; everything from accessing a spouse’s e-mail or Facebook account, to looking through their cell phone for suspicious phone numbers or texts, or digging through their web search history. Some spouses have been known to use methods that are even more technologically sophisticated, such as installing key-logging software on a spouse’s computer that tracks every keystroke, setting up hidden cameras or recorders or attaching a GPS device to a spouse’s car.
So what kinds of “spying” activities are actually allowed? It is perfectly legal to do a Google search on someone or to use a website in which you pay for publicly available information. Additionally, if your spouse is “friends” with you on a social media account, or posts messages that are public, any such postings are fair game and may be viewed by you and used as evidence in any divorce proceeding. Many of these “spying” activities can also be legal if your spouse has previously given you permission to access password protected accounts or social media records.
There is also no problem with any information that is spoken directly to you by your spouse, or is sent or delivered to you in written form as these communications would be admissions from a party to the divorce. This includes any voicemails left on your cell phone as well as any emails or text messages sent to your cell phone by your spouse. Even if the voice mail, email or text message was sent to you inadvertently, it can still be legally viewed, retained, stored and used in any divorce proceeding. Additionally, anything observed in a public place or any conversations overheard in a public place where there is no reasonable expectation of privacy would most likely not be considered illegal and any information obtained would be admissible in court if it was relevant. You can also videotape or photograph almost anyone in a public place. Also, hiring a licensed private investigator to do investigative work or conduct surveillance on your spouse is legal. This type of professional would be allowed to testify in court regarding any information not obtained illegally.
Now let’s take a look at what types of “spying” activities would most likely be found illegal.
In Florida and numerous other states, recording someone during a phone conversation or in person without their knowledge and consent would be considered illegal if the conversation is in a nonpublic place. Even secretly picking up the phone and listening in to the conversation while other people are talking could result in evidence which would be inadmissible in court.
It is also potentially illegal to hack into your spouse’s password-protected cell phone, email or social media account. Looking through your spouse’s computer files (unless it is on your computer) without their permission could also result in inadmissible evidence, and any information obtained in this manner would most likely be excluded from any future divorce proceedings. Installing a GPS device onto your spouse’s car or key logging software onto their computer could also get you into legal trouble especially if you are not the sole owner of the car or computer. Additionally, if you’re thinking about installing hidden cameras or recording devices you need to be very careful about where they’re located, because installing those cameras on property not owned by you or in places where a person has a reasonable expectation of privacy, might violate wiretapping or other privacy laws. For example, you can install a home video security system that records video only, and which your spouse is aware of. However, if you installed the video system solely to spy on your spouse, and your spouse is totally unaware of the video system, you may have violated your spouse’s privacy rights.
Keep in mind that the law varies from place to place and situation to situation, so that what might be legal in one state may not be legal in another or under federal law. The best advice I can give you would be to talk to your attorney before taking action to record, video, invade password protected accounts, or take any other action to obtain evidence in your case. Your attorney should be able to guide you through the evidence gathering process so that all the information you obtain will be obtained legally, be admissible in court and does not get you in trouble with the law.
M&B Family Law & Mediation Services,
Divorce and Family Law Attorneys
