Spying on your Spouse in Virginia – Recording, Email Intercepting and GPS Tracking in Virginia Divorce

By | October 18, 2013
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Spying on your Spouse – Recording, Email Intercepting and GPS Tracking in Virginia Divorce.  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.  See Virginia Code 19.2-62.  Moreover, even if you are able to lawfully obtain this material, you may not be able to use it in court.  See Virginia Code 18.2-420.2.  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, again, one of them consents to being recorded).  Recording a telephone conversation and/or making a video-recording may trigger 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 may be permissible provided the information is accessed only by an owner or owner’s agent and other requirements are met.  See Virginia Code 18.2-60.5.  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, however, 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. – jweis@curranmoher.com – 10300 Eaton Place, Suite 520, Fairfax, VA 22030 – 571-328-5020.


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