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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.

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