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Digital spying on your spouse is a bad idea

Dear Clients and Friends,

There’s a lot of cutting-edge technology available today that makes it easy to spy on someone — or for someone to spy on you.

Some programs enable people to “jailbreak” your phone and get past your anti-spyware protection. Once that protection is gone, other programs can give someone access to emails, text messages and call history. Then other programs can be used to encrypt your data and send it to an account where it can be accessed.

Unfortunately, the existence of such technology may tempt someone in a bad marriage to use it to spy on his or her spouse. That could lead to evidence of infidelity, help dig up dirt for a custody case, or provide evidence that an ex is cohabiting with a new significant other, which the spying spouse could use to get out from under his or her alimony obligations.

But as tempting as it seems, it’s a very bad idea. For one thing, illegally obtained data could easily backfire in family court. Worse, you could end up facing criminal sanctions. That’s because of laws like the Federal Wiretap Act, which makes it a crime to use a machine to capture someone else’s communications without court approval.

In addition, California and other states have “anti-stalking” laws, and digitally spying on your spouse violates these laws with penalties that include jail time.

Assuming that you can go ahead and spy and then simply delete everything if your spouse finds out won’t work either. First of all, deleted data can usually be recovered with the aid of a good computer forensics expert. Additionally, you’re engaging in “spoliation” of evidence, which will certainly hurt your custody or divorce case.

Theoretically, if your spouse reports being hacked and the police investigate, you might even be considered as having obstructed justice, which can a crime in and of itself.

In a recent case from New York, the husband, known in court documents as “Crocker C.,” installed spyware on his wife’s phone three weeks before filing for divorce to intercept communications between his wife, known as “Anne R.,” and Raoul Felder, her celebrity divorce lawyer. Crocker gained access to approximately 200 emails before a computer expert Annie and her Attorney hired for a different issue discovered the spyware. The police have since seized all of Crocker’s computers and devices which are now being scoured for evidence that he intercepted his wife’s confidential communications and Crocker has also been found in contempt of court for trying to wipe all of his hardware.

In a Texas case, a man man was sentenced to four years in prison for using software called “SpyRecon” (which parents can use to monitor their kids’ smartphone use) on his wife’s phone. 

Situations may exist where digital spying is the thing to do and if you or anyone you know is feeling tempted I suggest that your first call be to us for a free phone evaluation of your matter.



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