I think my Spouse is Cheating. Can I spy on him?

As most of us well know, we live in a high-tech, digital world – a world which is becoming increasingly more so with each moment.  It is a world full of “smart” devices – smart phones, smart cars, smart televisions, even smart homes.  In so many ways, technology adds to our world.  We are more connected than ever, the pace of business moves faster, and we can receive our news and updates from family and friends across the globe in an instant. All of these things are wonderful. As with all wonderful things, however, there are downsides.  One of the downsides of technology, insofar as family law is concerned, is that it gives us the capacity to spy and eavesdrop on one another with greater ease than ever before. While people have always been able to spy on one another with more traditional methods like tracing, wiretapping, or hiring a private investigator, today’s technology makes it easier than ever before – and this can ultimately cause a number of problems for everyone involved.

Particularly in marriages that are already troubled, spying can be quite a temptation.  It’s natural to what to know what we don’t know, and this can be a particularly strong urge when we suspect that our spouse may be having an affair or hiding a bad habit from us. This desire is entirely understandable.  It is natural to hope to disprove our suspicions, or to be able to plan how we should take action if we find out that they are true.

While these feelings are understandable, and it is important to know that they should be resisted – for many reasons.  Choosing to spy on your spouse is not only an unhealthy behavior that encourages mistrust – in many cases, it is also illegal.  Many spouses who are emotionally stressed and desperate to find out the truth about their spouse so they can determine how to move forward unfortunately do not realize this or take it into account until it’s too late.

If you suspect that your spouse is, or may soon attempt to spy on you, or, alternatively, if you are thinking of spying on your spouse, you should contact an attorney immediately.  Engaging in illegal methods of spying could not only be devastating from an emotional standpoint – it could also expose you to serious legal liability, which is the last thing you need as you contemplate divorce.

What the Law Says About Spying 

Legally, from both a federal and state perspective, spying on your spouse is simply not a good idea. Indeed, both federal laws, and the laws of the state of North Carolina prohibit many commonly used methods of spying on one’s spouse. It is important to have a basic understanding of these laws in order to know what activities could potentially expose you – or your spouse – to liability.

The Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act are federal laws that apply to spying, and which are commonly referred to jointly as the Electronic Communications Privacy Act.  Initially enacted in 1968, these laws were created to ban wiretapping of telephone line, but have continually evolved with changing times.  Today, the law applies to such varied methods of digital communication as emails, cell phones, voicemails, text messaging, online chats, voiceover IP, and more.

Broadly speaking, the ECPA makes it illegal to record or eavesdrop on communications that your spouse makes without his or her consent.  This would include wiretapping phone lines, installing spyware on a spouse’s computer without their knowledge, “hacking” into your spouse’s email account, and other similar activities taken without the spouse’s knowledge for the purpose of intercepting their communications.

Certainly, if your spouse authorizes you to read or listen to their communications then legality is not a concern.  Unfortunately, however, what constitutes “authorization” can be somewhat of a gray area. These matters are best discussed with a knowledgeable and experienced attorney who understands the law and how it might apply to your particular circumstances, as courts decide these matters on a case-by-case basis. Generally, however, to determine whether your access to your spouse’s communications is likely to be considered “authorized” or not, is to ask yourself whether the actions you’re taking feel like an invasion of your spouse’s privacy.  If the answer is yes, it would be best to avoid taking them.

North Carolina has its own act that addresses the interception of wire, oral, or electronic communications, known as the North Carolina Electronic Surveillance Act.  This act addresses much of the same information as its federal counterpart, and makes it illegal to intercept your spouse’s communications – whether over the phone or electronically – without their consent. 

In addition to these laws, those who are considering spousal spying should also be aware that North Carolina recognizes several tort claims that are also applicable to activities like spying.  These causes of action are intended to protect privacy.  One of those is known as “Intrusion upon Seclusion,” which essentially means that invasion of privacy is recognized in North Carolina as grounds for a lawsuit.  In such a lawsuit, one spouse would assert that the other intentionally intruded into their private affairs, and that a reasonable person would find the intrusion highly offensive. 

In order for such a claim to be successful, the intrusion does not necessarily have to be a physical intrusion – certainly, it could include hacking into an email account or bugging a phone.  Physical intrusions qualify as well, however – placing a GPS tracking on a car without knowledge or permission, for example, might suffice to bring this type of claim as well.

North Carolina also recognizes other torts that could apply depending on the details of the situation, and consultation with an attorney to better understand the details of those laws would be a wise course of action.

Seek Legal Advice Before Spying

Without question, spying on a spouse can be tempting – particularly if you suspect your spouse of hiding hurtful or harmful behaviors. If you have reached a point in your marriage where you are seriously contemplating divorce, it is understandable to want to obtain information that will confirm or disprove your suspicions.  Certainly, in some situations, evidence of inappropriate behavior can be helpful to your case during divorce proceedings, as we’ll discuss later in this guide.  It is important to collect that information in the right way, though, and an attorney who understands the law can advise you as to how best to go about doing that in a legal manner. Consulting an attorney prior to taking any action that might be questionable or reflect poorly on you in a future divorce proceeding is always a wise decision, and we would encourage anyone contemplating spying to take that important step first. 

In essence, after all of the foregoing factors are considered, our advice to those who are contemplating divorce would be this: Truly take the time you need to think through your decision in the most thorough manner possible.  Divorce is a life-changing decision.  That’s not to say that it might not be the right one, but it is a decision that certainly should not be made in haste, or from a place of intense emotion that might later subside.  Truly think through your emotions, envision your future, and consider the practical realities of what divorce means.  As you’re doing so, be careful not to take other actions – spying, having affairs, or engaging in other behaviors – that might be detrimental to you in future divorce proceedings.  Doing so puts you on the best footing to go forward down whatever path you ultimately decide is best.

​If you need to speak with an experienced family law attorney, please contact Adkins Law to arrange a consultation. 

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