I am often asked questions about spying on a spouse: “can I record my spouse?”, “can I read my spouse’s emails?” or “can I put a GPS on my spouse’s car?” The answers to these questions can be surprisingly complex and often extraordinarily fact-dependent. Federal and state laws may come into play. Moreover, this area of law is constantly changing as new technologies emerge to facilitate this form of espionage. Below is a brief summary of some general rules to consider. Like all of the posts on this blog, the information provided is NO SUBSTITUTE for consulting with an attorney.
“Can I make a tape recording of my husband?” Many spouses consider using a tape recorder (or similar audio-only device) to catch their spouse saying something inappropriate. Virginia is a “one-party consent” state, which means it is illegal to record a conversation between two people unless at least one of the people consents to the recording. So, for example, you may record yourself and your husband having a conversation, because you have knowledge of the recording and you consent to it. You may not, however, hide a recording device in his car hoping to catch him with another woman (unless one of them consents to being recorded). Recording a telephone conversation and/or making a video-recording may triggers different legal regulations that I will not touch upon here other than to note that both are substantially more risky and difficult to legally obtain.
Whether the issue is child custody, infidelity or domestic violence, an audio recording can often be quite helpful. Before making such a recording, however, it is advisable to speak with an attorney.
“Can I snoop into my wife’s email?” Emails are often a treasure trove of divorce-related information. Though the law regarding access to your spouse’s email account is evolving, the most important concepts appear to be “authorized access” and “expectation of privacy.” When your wife knows that you know the password to unlock her iPhone and you use her iPhone to occasionally make calls, browse the internet, start videos for the kids, etc., you are probably authorized to use her phone and look at its contents. She has no expectation of privacy. Knowing your wife’s password is very different than guessing it or obtaining it without her knowledge. In such cases, you probably do not have authorization to look through her phone. She has an expectation of privacy.
Determining what constitutes “authorization” can be thorny. Do you have a “family password” for all password protected items? Has your spouse given you limited authorization to access certain materials, but not others? Can your spouse authorize you to view her work email account? If you feel like you are invading your spouse’s privacy, it would be a good idea to speak with an attorney before moving forward.
Two other related notes: First, “spyware” is nearly always a bad idea. Often, it’s also illegal. Second, using your FaceBook account to view your spouse’s FaceBook timeline is perfectly acceptable. That is public material; there is no expectation of privacy.
“Can I put a GPS device on my husband’s car?” There is conflicting authority on whether you can place a tracking device on your spouse’s car. The U.S. Supreme Court has held that police officers may not place a GPS tracking device on an individual’s car where there is no warrant in place to do so. Does that decision create a blanket prohibition or is that decision limited to police procedure? Virginia has a statute that discusses “motor vehicle recording devices” that indicates such devices are permissible provided the information is accessed only by an owner or owner’s agent. Many attorneys, me included, believe the issue boils down to ownership: if you own the vehicle (or if you are a joint owner), you can consent to such a device being placed on your vehicle. Reasonable attorneys disagree about this issue.
If you’ve got questions about the information above, please feel free to drop me a line. Jason A. Weis, Esquire – Curran Moher Weis P.C. – firstname.lastname@example.org – 10300 Eaton Place, Suite 520, Fairfax, VA 22030 – 571-328-5020.
Ah, the power of the inter-webs. Our “modern era” has created a host of interesting and unique issues for both couples going through divorce and the attorneys who represent them. Can I read my husband emails? Well, maybe. It may depend upon how you accessed them. Can my attorney subpoena my wife’s text messages? Sure, but your attorney is likely to receive only the dates and times of the texts, not the messages themselves. Screen shots of the texts might suffice. Can my attorney recover deleted emails or computer files? Perhaps, but be prepared to pay a computer forensics expert to take the computer apart. What about what my spouse posted on Facebook or tweeted on Twitter? What about websites my husband visits late at night? Is it okay to cheat if I use a service like www.ashleymadison.com? Must I report my cheating spouse on www.cheaterville.com? You see where this is going.
Save the last two questions, which frankly are silly, most of these topics require a detailed discussion between client and attorney. In a growing number of my cases, some of the most useful and interesting materials come in the form of emails, text messages and camera-phone photographs. Whether and how you use these materials can play an important role in shaping the landscape of your family law matter.
Scientists at the University of California have recently determined that dating an attractive partner makes you more appealing to possible mates. These scientists asked volunteers to rate the attractiveness of men and women they viewed in photos. The volunteers then looked at different photos of the same people, this time showing them with companions. Both men and women found individuals more desirable when they were paired with attractive companions. By tracking eye movements, the researchers found that the volunteers, “all spent a significant amount of time looking at the mate’s partner,” evolutionary biologist Jessica Yorzinski tells LiveScience.com. Although the study aimed to probe the evolutionary factors in mate choice, it suggests dating strategies for singles. “Perhaps if woman doing online dating websites are pictured with attractive boyfriends,” says Yorzinski, “that would help them get more responses to their ads.”
Profiles on social networking sites like Facebook or MySpace often provide interesting insights into the health of a marriage. More than the poster’s self-identification as “married” or “single,” often posters add date-stamped photographs and/or comments about themselves and their most recent activities. Additionally, posters can be “tagged” in photographs on others’ sites and commented about. The reliability of information gathered on the internet and admissibility of such information in a court-proceeding will depend on a number of factors.
If you would like to discuss information you may have come across, feel free to drop me a line.
My experience and background reflect the hallmarks of success one must demand of a lawyer in Northern Virginia's legal landscape. As a native of this area, I have here focused my practice on providing sound and balanced representation to clients navigating the difficult legal waters of family law, including contested divorce, custody, visitation, spousal and child support, and equitable distribution. More >>>
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Thank you for taking the time to read this blog. I hope you find the information here as enjoyable to read as I find to write. Please note that reading this blog does not create a legal relationship between you and Jason A. Weis, Esquire or any other attorney associated with familylawva.com. Moreover, all postings on this blog are merely attorneys' commentary on the state of family law in the Commonwealth of Virginia. THE POSTINGS ARE NOT LEGAL ADVICE – if you have a legal issue or question, I strongly encourage you to contact a lawyer. I would be pleased to refer you to someone if I am able.