You have that feeling that something just isn’t right with your spouse. Has your spouse suddenly become overly protective of his or her phone? Increasingly coming home late from work? Could the reason be that your spouse is cheating? How can you be sure? Should you spy on your spouse? In today’s technology-driven world, it is easier than ever to acquire software and the like to spy on your spouse, but is it legal? The answer, unfortunately, is not black and white.

There are many spy apps available on the market such as mSpy and Highster Mobile that are undetectable. While these apps will most likely confirm your suspicions, the use of them could result in undesirable consequences for you. Often evidence obtained illegally may result in charges against you if you attempt to present them in court. Remember—every action has a consequence. A Wall Street Journal article published in 2012, chronicled the stories of men that suspected their wives were cheating and installed spying software on their spouses phones and computers, and GPS devices. The men were convicted of stalking, invasion of privacy and violations of the federal Wiretap Act, which bans interception, disclosure or use of electronic communications acquired through the use of a “device.” That is why it is imperative to let an attorney advise you every step of the way.

There are both federal and state laws that prohibit you from electronically spying on your spouse.

Federal

The Electronic Communications Privacy Act was enacted by the US Congress in 1986. This is a common referral to both the Electronic Communications Act and the Stored Wire Electronic Communications Act. This act, “…as amended, protects wire, oral and electronic communications while those communications are being made, are in transit, and when they are stored on computers. The Act applies to email, telephone conversations, and data stored electronically.”

State

Arkansas recognizes common law tort for invasion of privacy, basically, the one who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other person. Privacy invasion is considered to be, but not limited to:

  • Unreasonably intruding on the seclusion of others;
  • Appropriating another’s name or likeness;
  • Giving unreasonable publicity to another’s private life (this could include making statements on social media);
  • Using publicity that unreasonable places another false light before the public (again, social media blasts could fall in this area)

Arkansas code (Sec. 5-60-120) states that it is unlawful to intercept a wire, landline, oral, telephonic, or wireless communication and to record or possess a recording of such communication unless the person is one of the parties or one of the parties has given prior consent. There are exceptions for law enforcement, employees, or agents of public telephone utility or company licensed to provide wire or wireless telecommunication.

What if you don’t actually install the software on your spouse’s phone, but you snoop through his or her phone and email? Is this legal? Again, as in all law it is not cut and dry. If your spouse is aware that you know the passcodes needed to access the information like the phone, bank accounts, etc., then you have authorization, but if your spouse is unaware that you have knowledge of the needed information, then it is considered illegal. If your spouse changes the passcodes without your knowledge, it is now technically illegal for you to obtain that information.

In some instances, simply having evidence of an affair can affect your case by giving you an advantage. Your spouse may become more agreeable if he or she knows you have evidence that could result in an unfavorable image of him or her.

A good rule of thumb to follow:  If it feels like an invasion of privacy to you, then it most likely is. Let Kevin Hickey Law Partners guide you through these difficult circumstances to ensure your best interest.

 

References

https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1285

ftp://www.arkleg.state.ar.us/acts/2001/htm/ACT1190.pdf

https://www.law.cornell.edu/uscode/text/18/2511

 

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