Beware of the Snooping Spouse

by: Victoria E. Paone, Esq.

Is somebody watching you?

A tracking application known as “mSpy” was specifically designed for cell phones for people to monitor text messages, calls, e-mails, current GPS location, browsing history, etc., remotely from their own personal electronic device (computer, iPad, etc.).  Although this application has recently been advertised as a “parental control” gadget, it has also been utilized as a mechanism for soon to be ex-spouses to monitor one another.

Could this happen to you?

Absolutely. Many tracking applications only cost $20.00 per month.  In addition, a snooping spouse only needs a few minutes alone with your cell phone or computer in order to plant a spyware application.  These applications are often undetected because the average person has approximately 80 applications on their electronic devices and only utilizes about 40 of these applications.

Can your divorcing spouse utilize information obtained through spyware programs against you in family court?

As is the answer to most family law questions, it depends and requires a fact sensitive analysis. This past year, a New York family court sanctioned an estranged husband for planting “mSpy” onto his wife’s cell phone in Crocker C. v. Anne R. In this case, the husband used “mSpy” to access the microphone on the Wife’s cell phone in order to listen to the wife’s conversations, including those of which she had with her family law attorney.  The New York family court found that the Husband attempted to gain an advantage in the matrimonial action by violating the “sanctity of the attorney client-privilege.” The husband’s pleadings were dismissed with the exception of his requests pertaining to custody and child support.

Although there are no published New Jersey family law cases addressing the issue of information obtained through spyware applications, there is unpublished family law authority which suggests that intercepting a spouse’s personal information through spyware programs may be permitted in certain circumstances. In M.H.S. v. L.G.S, the Appellate Court affirmed the entry of pictures into evidence pertaining to pornography with an “incestuous theme” obtained by an estranged wife through a spyware program she planted on her husband’s computer. In order to determine a custody and visitation issue, the Appellate Court ignored the manner in which the wife obtained the evidence in order to fulfill its primary function of evaluating the best interests of the child.

Can you pursue legal remedies against the spying spouse?

It depends. In the case of Crocker C. v. Anne R., the Husband who utilized “mSpy” is currently being sued by his estranged wife for civil damages under the federal wiretapping statute for using information, obtained without consent, by way of electronic eavesdropping.   New Jersey’s wiretapping statute mirrors that of the federal law.

Spying that occurs between spouses does not always violate the wiretapping statutes.  In White v. White, the family court denied the husband’s motion to suppress his e-mails, which were retrieved by his estranged wife from his computer located in a common space in their marital home. The family court specifically found that the wiretapping statutes protect the communications “in transmission,” not those communications that have been previously sent and saved. Moreover, the family court found that the husband did not have an expectation of privacy because his family, including his estranged wife, had access to his computer. Spouses who obtain emails without consent may violate other laws including, but not limited to, “Theft of Computer Data,” “Damage or Wrongful Access to Computer System,” etc.

How can you catch and avoid the sneaky spouse?

The first step is to check your computer and cell phone devices. If you do not recognize an application and you discover that it is a type of spyware program, hire a forensic computer expert to investigate and review your electronic device.  If you are in the middle of divorce litigation, you may want to advise the court of this issue because a judge may order that a neutral forensic computer expert investigate your tainted electronic device as well as the estranged spouse’s electronics. Spouses who try to “wipe” their electronic devices or “spoil” evidence may be sanctioned like the estranged husband in Crocker C. v. Anne R.

In terms of avoiding snooping spouses, investigate your computer browser history as many spyware programs are purchased and secured through websites. In addition, review your computer’s downloads and applications folders for anything aberrant and unfamiliar.

With regard to your cell phone, delete unrecognizable Smartphone applications.  In addition, remove any applications that you do not use. Also, check your account to review recently installed applications. For iPhone users, click the “App Store,” go to your account and tap on the “purchase” tab. Here, you can review any applications that were downloaded and installed on your phone.