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Spousal spying: Watch out if you are watching your spouse

May 17, 2010 | Richard Forrest Kern | Family Law, Privacy Rights | No Comments

When it comes to spying on one’s spouse, be careful what you wish for—not only may it destroy your marriage, you may expose yourself to criminal and civil liability.

An introduction to spying

If you must spy on your spouse, educate yourself on the laws of your jurisdiction and the federal laws on the topic; knowing when you are under the purview of the state, federal, or even common law is extremely important as it vastly affects how and to what extent you may spy on your spouse. The safest course of action is to seek legal advice from a licensed attorney before you spy. And hire a licensed and respected private investigator instead of conducting your own surveillance.

The law treats government spying and individual spying differently.

There are differences in the law’s treatment of surveillance based on who is doing it. Generally, the law is more restrictive regarding government and law enforcement spying than then it is when private individuals are doing the surveillance and even less restrictive for parents monitoring their minor children. However, many boundaries still exist regarding private individuals, and some spying could leave individuals open to being sued civilly or charged criminally in some circumstances.

Criminally, several charges could be levied against someone for spying on another person, including trespassing or federal wiretapping charges. These are serious crimes and one could face imprisonment and be required to make financial restitution. Tortious Invasion of Privacy and other Civil liability could apply.

Tortious Invasion of Privacy by Intrusion

North Carolina recognizes an action based on an invasion of privacy by intrusion. Invasion of privacy by intrusion is defined as: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” North Carolina does not recognize a cause of action for the invasion of privacy by disclosure of private facts or invasion of privacy by placing a plaintiff in a false light before the public.

Specific examples of intrusion include: “physically invading a person’s home or other private place, eavesdropping by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and opening personal mail of another.”

In other words, certain areas may be off-limits to even a spouse. For instance, a video camera installed in a bathroom may be tortious as a reasonable person would likely find it “highly offensive” even in the context of a marriage. No cameras or audio recorders should be employed in a toilet area, shower area, or bedroom area of a spouse.

Interception of oral communications and electronic communications

In North Carolina N.C. Gen Stat. § 15A-287(1)(a) states:

1. Except as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person:

1. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.

2. Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

1. The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communications; or

2. The device transmits communications by radio, or interferes with the transmission of such communications.

2. Willfully discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through violation of this Article; or

3. Willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Article.

Consent by at least one party to a conversation is required before recording a conversation between people. In North Carolina, if you are a party to the conversation, you may consent to your conversation being recorded but you cannot record a conversation to which you are not a participant. Therefore, you cannot legally record a call between your spouse and another person without at least one of them consenting to the recording—even if the conversation is between your spouse and your child. If one person is in another state and not in North Carolina, it may be illegal to record the conversation. Many jurisdictions, including North Carolina, have recognized that parents may vicariously consent on behalf of their minor children to the interception of their conversations. A custodial parent may vicariously consent to the recording of a minor child’s conversations, as long as the parent has a good faith, objectively reasonable belief that the interception of the conversations are necessary and in the best interest of the child. The doctrine of vicarious consent has been applied to parental eavesdropping on conversations between the other parent and their minor children and third parties such as a babysitter or nanny. You must use extreme caution before taping any conversation and we strongly recommend you speak with a licensed attorney to fully understand your rights and responsibilities.

Silent covert video surveillance

Only oral communications are covered by N.C. Gen Stat. § 15A-287(1)(a), and thus, videotaping of a spouse without an audio recording would not be a violation of state and federal wiretapping laws.

Video surveillance by private parties, does not implicate the Federal Constitution’s Fourth Amendment. In, State v. Diaz, 308 N.J. Super. 504, 706 A.2d 264 (App. Div. 1998), it was held that the actions of a child’s parents in contracting with a private company to install audio-video surveillance equipment in their home, for the purpose of observing a babysitter who they suspected of abusing the child, did not implicate the federal or state constitutions, because the allegedly unlawful videotaping was performed by private individuals and not by the government or its agents and the parents vicariously consented to the audio capture on behalf of their child. The denial of the babysitter’s motion to suppress the videotape from evidence, at her trial for aggravated assault and endangering the welfare of a child, was affirmed.

The acquisition of an image is not an interception of a wire or oral communication because the contents of a conversation are not captured. Video surveillance is not the interception of an electronic communication because there has been no interception of the image while it is being transmitted. The audio portion of a videotape is an oral communication and would be subject to the rules discussed above.

However, remember the rules stated above regarding tortious invasion of privacy. Placing a video camera in a private place like the bedroom or the bathroom could still expose you to civil liability.

GPS tracking of a private vehicle

Electronic tracking devices do not “intercept” contents of any wire or aural communication and because the vehicle is traveling on public roads in view of everyone who passes, there is likely no intrusion upon the solitude or seclusion of another or his private affairs or concerns and it also likely not to be offensive to a reasonable person. If the vehicle is titled in your name and it has not been sequestered by contract or court order in favor of your spouse, there appears to be little concern over placing a GPS tracker on the vehicle. Placing such a device on a vehicle that you do not have an ownership interest in, however, could be a trespass to chattels and you could be liable in tort for financial damages. Always consult a licensed attorney before taking any action.

Email & the Internet

If you are still living with your spouse and you are not separated, then when considering other forms of communications such as email communications and the like, the key is: whether your spouse has an expectation of privacy that could be invaded. Even if your spouse previously gave you their email password or computer password, they may still have an expectation of privacy and violation of that privacy could open you up to criminal and/or civil penalties. Ask yourself; for what purpose did my spouse give me his or her password? Do not exceed the scope of that purpose. The use of certain programs like spyware, keystroke recorders may be permissible or illegal depending on the technology employed by the software and whether you continue to live with your spouse.

Once separated, access to your spouse’s email without permission is likely a violation of federal and state wiretapping laws even if you had permission prior to the separation.

Conclusion

The most important thing to remember is that any surveillance must be legal, reasonable, and not overly intrusive. The status of the parties (e.g., separated or not, minor child, or spouse) and the facts surrounding the type of surveillance will affect the legality and permissibility of it. Criminal penalties including jail time and civil financial penalties may be assessed for illegal and improper activities. Some surveillance may be legally conducted by a licensed private investigator for which an unlicensed individual could face sanctions. This area is fraught with such significant and serious risk both financially and to your very liberty, that you absolutely must develop a plan with your attorney before taking any action.

Author’s Note: This article is in no way meant to be a comprehensive analysis of privacy law or surveillance of a spouse. The purpose of this article is to impress on the non-lawyer who may read it, the importance of considering all aspects and consequences of their actions and to outline generally some commonly unknown consequences of such for those who may be unaware. The reader interested in learning more should contact their attorney or perform additional research as more than anything this article should promote the commencement of a thorough discussion of these matters.

Disclaimer: Seek legal advice from an attorney licensed to practice in your jurisdiction.



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