Technology is making it easier and easier to satisfy our curiosity about just what the heck the people in our lives are up to. Are you curious about your husband’s whereabouts? You could plant a GPS device on his car. Do you want to know what your wife is saying to the kids? There are many ways to go about recording those conversations. Are you dying to know what your spouse is doing on that laptop, tablet, or smartphone of his/hers? You could install spyware or other programs (I’ve even heard of some of them referred to as “spouseware”) to secretly find out. Learning about your spouse’s or ex’s comings and goings, who they are living with, or what they are talking to the kids about can all be valuable information when there are custody issues, questions about whether your ex is cohabiting with someone else for purposes of termination or suspension of alimony, and many other legal issues. It’s certainly tempting…
BUT DON’T DO IT. At least not without talking to an attorney. Because even though technology gives you the ability to do this, it doesn’t make it right and it doesn’t make it legal.
I am seeing these issues come up more and more in my practice, and while much is unclear about where the boundaries can and should be drawn because of the fact sensitive nature of the use of technology in family law cases, a few things appear clear to me. Using technology to track your spouse or significant other leaves you open to a claim of stalking under the New Jersey Prevention of Domestic Violence Act. When you use technology to record parties to a conversation without their consent, you may also be subject to criminal and civil liability under Federal and State wiretapping laws – in New Jersey, this is known as the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156A. This is not to mention other civil claims such as invasion of privacy.
This is why it is critical that, before you take any step to use technology to surveil your spouse, you speak with an attorney to ensure that you are not doing anything that may subject you to civil or criminal liability, or to discuss alternative options that will allow you to surveil your spouse or family member without taking this risk. When you are dealing with a criminal charge of stalking, the “But the private investigator I consulted with said it was okay” defense is no defense at all. While private investigators know all about technology that can be used to surveil your spouse or other family member, they are not always thinking about or even aware of the legal ramifications of their advice.
And, importantly, once the proverbial cat is out of the bag and your spouse or other family member learns that they were being spied on, you cannot try to cover your tracks by destroying the evidence – this is known as “spoliation” of evidence and if you do it, you will likely be subject to sanctions and/or adverse inferences drawn by the Court. In other words, the Court will punish you for destroying evidence, and may assume that you did engage in the illegal use of technology by virtue of the fact that you felt the need to destroy the evidence of your conduct. Just ask the Plaintiff in the recent case out of New York State, Crocker C. v. Anne R., in which the Plaintiff installed spyware on his wife’s electronic devices to monitor all of her communications and listen in on her conversations with third parties including privileged communications with her attorneys and her psychiatrist. When the Defendant discovered this, the Plaintiff immediately “wiped” all trace of the spyware from these devices so that it was not possible to determine the extent to which he intercepted her communications. He was sanctioned and found in contempt.
And if you find yourself on the receiving end of being spied on by your spouse or family member, it is critical to obtain the immediate services of a forensic expert who can examine any device being used to record or surveil you and can take steps to preserve any such device for evidence purposes.
Remember: In many ways, the legal uses of technology – especially in the context of family law issues – is a bit like the Wild West. We are still trying to figure out the rules and the exceptions to those rules when it comes to the legal issues that arise in family law disputes, and it is always best to consult with an attorney before taking action.