(This is the third posting in a series about safety in this digital age. Click here to read the previous article in the series.)
Mental and emotional abuse from a controlling spouse is exacerbated by the use of spyware. Currently, few laws address one spouse’s intrusion upon another spouse’s right to privacy through abusive spy methods. Clearly, spyware that tracks a partner’s moves by observing and monitoring all computer activity such as websites visited, emails sent and received, instant messages sent and received, as well as all passwords and PINs entered by the spouse without their knowledge is illegal in most states.
The use of such illegally obtained information as evidence in court proceedings is also prohibited by law. The Federal Wiretap Act prohibits use of communications obtained through wiretapping in violation of the Act admitted into evidence at trials or hearings. A law firm in Chattanooga, Tennessee, was recently sued sued for two million dollars ($2,000,000) for allegedly using illegally obtained email evidence in a divorce action. Allegedly the estranged wife used email spyware to intercept communications from her husband’s computer, and her attorney “used or tried to use” the communication in the divorce action.
Attorneys, for both ethical and legal reasons, must clearly advise clients not to use any illegal spyware devices even if they suspect their spouse is cheating. Further, the Model Rules of Professional Conduct address the serious ethical violations that could arise if an attorney encourages or condones a client’s use of such spyware. Therefore, it is imperative for clients to understand the differences between legal and illegal surveillance so both the attorney and their clients avoid costly mistakes.
However, the use of spyware in intimate relationships to control a partner is not a form of domestic abuse currently recognized by law. Few criminal statutes effectively address the issue of marital spying. Some civil causes of action exist that might encompass spyware, but these laws are not well developed or targeted to put an end to this form of abuse. Even the Federal Wiretap Act, 18 U.S.C. § 2510, falls short of completely protecting a spouse who is unknowingly tracked, monitored and controlled by the other spouse. In fact, hardly any legal remedy exists until the controlling spouse becomes physically abusive.
The criminal definitions of domestic assault, stalking, invasion of privacy, computer tampering, and violating state wiretap acts each fall short of including marital spying as a criminal offense. The likely reason is that these statutes and acts were passed well before the rise in use of computers and the Internet. Possible causes of action against a spouse who uses spyware against another spouse are negligent infliction of emotional distress, intentional infliction of emotional distress, invasion of privacy, trespass to property, and possibly violation of a state’s wiretap act. Again, proving each of the elements required for each cause of action is difficult. Therefore, it is imperative that state legislatures and the federal government update civil and criminal laws to include spyware and other digital and technological advances to prevent harassment by one person against another.
Check back for the next article in the series: Cell Phone Surveillance and GPS: How to Protect Your Privacy and Safety
[1] See chart for individual state laws. “Electronic Surveillance Laws,” National Conference of State Legislature, available at http://www.ncsl.org/IssuesResearch/TelecommunicationsInformationTechnology/Electronic
SurveillanceLaws/tabid/13492/Default.aspx.
[1] Id. at 673 and 18 U.S.C. § 2515.
[1] “Attorneys Sued on Alleged Use of Email Obtained from Spyware,” Chattanoogan News, available at http://www.chattanoogan.com/articles/article_153998.asp (last visited June 29, 2009).
[1] Model Rules of Prof’l Conduct R. 1.2(d) (2002). Scope of Representation and Allocation of Authority between Client and Lawyer: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent…”
Model Rules of Prof’l Conduct R. 1.6(b)(2) (2002). Client-Lawyer Relationship: Confidentiality of Information: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another …”
Model Rules of Prof’l Conduct R. 8.4 (2002). Maintaining the Integrity of the Profession: Misconduct: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation…”
[1] Katherine F. Clevenger, “Spousal Abuse Through Spyware: The Inadequacy of Legal Protection in the Modern Age,” 21 J. Am. Acad. Mat. Law. 672, 653-76 (2008).
[1] Id.
[1] Id. at 656-62.
Posted in Blog
I have not seen anything on a spouse stalking and accessing e-mails, messages, etc after the other spouse leaves. Is there a specific time after one leaves their spouse that one can see another or date? I left my husband after 36 years of mental and emotional abuse. I started writing to a man about one month after leaving my husband and now he is threatening a Federal tort against me, the other man, and his wife who knew nothing. He has threatened both me, and he and his wife of giving him our emails and messages or he would take them to court and sue them for everything they own. He is trying to blackmail us and I need to know is there legal recourse in stopping him from trying to gain access to our personal e-mails, etc and actions to take against him? I really need to know as this can hurt so many innocent people.
Two years ago in the mitts of a 32 month long custody dispute I notice my home being entered into as it was in Lake Lure pre divorce… if only I had those trip cameras I would have caught the students my ex paid to pilfer finnacial records when we were exchanging my son. My wife teaches and has a computer lab and a tech for those computers at her disposal all the time. In Lake Lure a new computer suddenly began to have trouble and I found a program then – but the computer store could never relocate it. I photographed the screen and name and yes it was a spy ware that monitored anything set up for it to do but it was hidden in my virus protection and there was no cure. Not even reformatting. I bought a new hard drive weeks later there is was.
I moved here a created a locked office so when I was going to meet my son I could pad lock the office. Kingstree is a quite town and I began to leave the padlock of if I was running to the post office or not going to be away long.
My new dell laptop with Mcfee was left at home. It ran a virus check by itself at night. I awoke one morning to find a virus check found a PUP Potentially unwanted program. It named it and I Googled for info and explained clearly to me that this is not a virus program, it is a maintenance software tool, and a program for business owner to make sure their computers we use for the intended purpose – OK OK…. but it explained that it could not be downloaded by email, or though a properly working firewall (meaning never have two firewalls – use only one – two allows these programs and viruses to trick one egoist the other. MOST importantly this Keylogger could only be installed by disk of flash card or administrator of a network or wireless network and in that group unless you are good there can be holes – but I chose no wireless, I was hard lined from the out side to my computer.
The only way it could have been put there the day before was via a flash card – or Thumb drive. Later explained to me by a network supervise all the needed was about 4 minutes and the have the program parameters (what the want monitored and how frequently and where they want the information transmitted to) He said in big cities the thing to do for cuber criminals is to drop these is offices and people pick them up and figure free thumb drive and then the use it and likely go home with it, so neve let you friend use his thumb drive in your computer because it compounds to proliferate.
44 hours of Dell Tech Support later on a Cell Phone with a bill over $900 I refused to accept Dells service and demanded another computer and only then did I get ridd of the Keelogger…. Police would do nothing even though we had a copy of the instruction file and it was being sent to mu ex email. It was worthless later in court. Why, a certified forensic computer expert did not find and verify it was not contaminated like OJ’s glove.
This is serious stuff. Account numbers clearly recorded. I am told it is so clean that if you have a Cabelas account the greet you Welcome and if you purchase express you out with the last card you used…. Bank Transfers – no problem Transaction history – no problem – address book no big deal all updated each day mine the hit 4 times so it would only take about 90 seconded of the disk reading and writing.
There are practical uses for these programs but only in large network environments.
how hard is it to get and to use…. I could have downloaded one -set it up and put it on a thumb drive three times writing this.
If you are contemplating a divorce – see a computer security expert – have them check your wireless router.
These things are as popular as baby monitors now.
My ex had a friend stake out my house. Walk up act as if to knock and five minutes later gone.
Good luck