Spousal spying comes up all. the. time. In family law cases. Even though Arizona is a “no fault” divorce state, there are times when you want to prove your ex is an addict, abusive, or hiding money. There can be legitimate and illegitimate reasons to spy- or collect information. It’s important you have the proper information to protect yourself and defend against spying or legally obtain information you need.
In our first example, a client suspects her controlling husband of spying on her every move. He’s an IT professional and has the tools, means and motives to spy on her. He’s always been controlling, removing her access to money, monitoring her whereabouts, contacts, friends, conversations and spending. After a particularly nasty incident where he used the location of her phone to track her down with her friends she had enough and filed for an order of protection and for divorce.
He ran and spent months evading the service of her order of protection. She changed all of her email passwords and got a new phone. She changed everything on social media but she still felt like she was being watched. She heard through friends that he was still monitoring her on the home security system and through the thermostat! Is that even possible?
Yes. As scary as it is, it is possible.
Controlling individuals can use hidden cameras, computer and phone spyware, keystroke trackers, GPS tracking devices, voice recorders, drones and even high tech appliances to monitor behavior and activity.
For under $20 on amazon you can buy a GPS blue tooth tracker for kids and pets. For under $50 you can get tiny cameras with night vision. These items are readily available and easy to use, even for non-IT individuals who want to spy. A GPS tracker can show where you went, when you arrived, how fast you were driving, how long you remained at an address, and you can get notifications if a vehicle moves at odd hours.
There could be undetected software on your devices that are reporting information to people. Your “smart” thermostat can be set to recognize when you are several miles from the home for optimal heating and cooling. Your location services on your phone could be providing live, real time updates to your ex.
If you and your ex share a phone plan and you are using find my iphone, then yes, you may have authorized your ex to spy. Other iphone apps to be vary of include “voice memos” which turns your phone into a voice recorder or “find my friends” which allows you to share your location with selected individuals. “Find my phone” allows anyone with your apple login to locate a phone, ipad or computer. To make sure you are not being tracked, change your login or regularly turn off the “Find My Phone” app.
Is that even legal?
Both federal and state laws prevent certain types of spying and the spy could face criminal and civil liability if they are not careful in the retrieval of information. Possible crimes include:
- Invasion of Privacy
- Stalking
- Intentional Infliction of Emotional Distress
- Defamation
- Revenge Porn
- Trespassing or Theft of Information
The federal electronic communications privacy act protects the oral, wire, and electronic communications of others and prevents their interception or unauthorized access to communications.
This means you cannot open someone else’s emails unless they have consented to you doing so. By changing your password you are making it clear you do not consent to someone checking your email. If you leave an email open, no one is “intercepting” and you may have consented to the disclosure of the information.
Recording a spouses private conversation with someone else can violate this federal law. Arizona is a “right to record” state. That means as long as one party to the conversation consents to the recording of the conversation, the recording is illegal. You may not record the conversation your spouse is having with their lover. There is no inter-spousal immunity. That means, just because they are your spouse does not mean you can invade his or her privacy.
Each spouse is entitled to a “reasonable expectation” of privacy. If you are making out on the street corner in public, you are not entitled to privacy. If you are in a hotel room with your lover, no one can record you (legally).
If you think you are being recorded or bugged, tell your attorney immediately. We can hire a forensic expert to track the spying software or put protections in place to protect your privacy. If we find evidence of stalking or illegal spying, we can pursue both criminal and civil liability claims against your ex. You can fight back. The same is true if you believe that your ex is planting evidence. This happens, and you can fight back. Sometimes an estranged ex will seek to plant illegal pornography or other illegal and damaging material on your hard drive. This can be discovered.
There are some “Best Practices” you can use to protect yourself. Follow these rules of thumb to maximize your privacy while going through divorce:
- Change Your Passwords
- Consider getting a “go phone” and separate email for communications with your attorney
- Consider “Going Dark” and suspending social media use and activity during your divorce
- In certain circumstances, get your devices “wiped” by a professional
- Monitor location and privacy settings
- Do not share attorney/client information
- Monitor the social media accounts of all potential witnesses and parties
- Be careful of new toys your children bring into your home- teddy cams can and have been used in divorce cases.
