(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.