The Rise of Digital Spying in Divorce

The Rise of Digital Spying in Divorce

• February 12
• Evans & Herlihy
• Family Law

When marriages turn sour, some people turn to digital surveillance to monitor their spouse’s behavior. According to an NPR report, some family law attorneys say that digital spying has become so common, it’s changing how they handle divorce cases.

People are using GPS monitors, software, and other devices to monitor not only the physical location of their current or ex spouse, but also their online activity. One partner may be trying to gather evidence that could help them prevail in a divorce. But in at least one case, a woman’s ex-husband was using a GPS device to track her movements long after they had split. Prosecutors couldn’t charge the ex-husband with a crime, as he and his wife had joint ownership of the car.

Lack of Clarity

Employers may legally use digital surveillance to track employees’ online activity, and parents may use it to track their children’s whereabouts and internet usage. But the law is less clear about whether one adult can digitally spy on another.

In 2007, one Austin man was charged with illegal wiretapping, after he secretly installed spyware on his wife’s computer. He was sentenced to four years in prison, but such convictions aren’t the norm. Texas law forbids deliberate interception of spoken or electronic communication, but it does not address whether that provision applies to jointly owned property.

A person who suspects they are being tracked may have difficulty convincing police to investigate the allegation. If police do investigate, they may be unable to tell who installed the spyware or tracking device.

Private Investigation vs. Spying

When spouses suspect their partner is unfaithful, they sometimes hire private investigators. Private investigators can follow a person and photograph them – they can even dig through someone’s trash, if the trashcan is on public property. But Texas law prohibits private investigators from intercepting communication, unless they either have a legal warrant to do so or one party in the conversation is aware the conversation is being monitored.

That point – about awareness of a conversation being monitored – is what raises difficult questions about the legality of monitoring jointly shared equipment. If a spouse installs spyware on a jointly owned computer, that spouse is obviously aware that conversations are being monitored.

The Role of Spyware Manufacturers

Spyware manufacturers present their products as useful tools for monitoring employees and offspring, but their products are just as easy to use for illegal activities. And some companies are all too eager to sell their product for unscrupulous purposes.

One undercover investigation in 2017 by global news organization Al Jazeera found two Italian companies and one Chinese company were perfectly willing to sell spyware that could intercept communications from millions of people. Merchants for these companies discussed how to get around export laws and how to disguise their activity using “shell” companies. A researcher at Privacy International told investigators that oppressive regimes have used spyware to target and sometimes imprison activists.

Laws Falling Behind

Technology has been evolving faster than the laws that regulate it. For the immediate future, the legality of digital spying among spouses is debatable, as is the liability of companies that create spyware.

If you’re going through a divorce, or are recently divorced, and you believe you’re the victim of digital spying, contact the Austin, TX-based Evans Law Firm. As attorneys with years of experience, we help the people of Texas put their lives back on track. We offer small law firm attention with big law firm results. Call today at (855) 414-1012 or fill out this online contact form to find out how we can help you.