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Home Computers, E-Mails and Divorce
Can I spy on my spouse if he is engaging in a cyber relationship?

Cyber-flirtations seem harmless to some and dangerous to others. Cyber affairs is a growing phenomenon in the techno age that we now live in. The majority of cyber-flirtations never lead to a physical relationship, and many people believe that they are harmless or constitute "safe infidelity." I don't subscribe to this train of thought. Cyber-betrayals can seriously damage and even destroy the marriages of those involved.

It is a huge, huge issue in the world of matrimonial practice. The internet has changed the whole landscape of human sexual behavior. You've got this box on your desk that is accessible all the time with little or no effort. The net just makes it too easy for a lot of people to communicate. So easy, in fact, that they don't even need to leave home. People sneak down to their computers while their spouse is sleeping and engage in these behaviors. They don't have to meet someone at the local bar or motel.

In my past decade of matrimonial practice, I have seen a dramatic increase in divorces and separations resulting from cyber-infidelity. Some clients arrive at my office with downloaded e-mails and with digital photos of their spouse's paramour. In my experience about one third of these cyber-affairs escalate from e-mails, to telephone calls to personal contact.

Even when no physical contact has occurred, these relationships can destroy a marriage. Unlike physical affairs, where a spouse doesn't know what a straying partner says during an illicit encounter, e-mails leave a record. In these cyber-affairs, quite often the parties say things that are extraordinarily sexual, in ways that the husband and wife do not talk. They also appear to be speaking more from the heart than married folks speak to one another.

My wife knows my computer passwords and I suspect that she may have gone through my electronic files. I am worried about what she may have read. Has my wife engaged in any type of criminal conduct by accessing my computer files?

In today's world, spying on one's spouse includes tapping telephones, intercepting emails, accessing stored computer files, recording visual and audio images, and stealing passwords to access personal information. Spying on your spouse is not illegal. However, the key issue is the method that you use to spy on your spouse. This is the dispositive factor to ascertain if your spying crosses the line and if it becomes illegal.

The law surrounding spying on one's spouse by intercepting phones, pagers, and the unauthorized access of computer and Internet information is evolving at a rapid pace. If the unauthorized spouse has accessed information that was obtained from their partner's computer, then this act can constitute the common-law tort of the invasion of privacy. Basically, the spouse's whose privacy was violated can then file a civil suit against on the grounds of the invasion of privacy. These types of claims are also referred to as Tevis claims. In most cases the Tevis claim and the divorce case are consolidated, and then tried in one proceeding. If the invasion of privacy claim is egregious, then the violator could be subject to significant damages. Moreover, these damages could be collected by an offset against the marital assets.

A snooping spouse case can also be charged with the criminal offense of the Wrongful Access to a Computer N.J.S.A. 2C:20-32. If the unauthorized access is from a computer system, such as a corporation or financial institution, then there exists the common-law tort of the invasion of privacy, as well as the civil remedies under the New Jersey Wiretap Statute. Additionally, the illegal accessing of a computer system will violate the criminal statutes of N.J.S.A. 2C: 20-25 (Computer-Related Theft), N.J.S.A. 2C:20-30 (Damage or Wrongful Access to a Computer System), N.J.S.A. 2C:20-31 (Disclosure of Data for Wrongful Access), and/or N.J.S.A. 2C:20-32 (Wrongful Access to a Computer).

Thus, if a spouse intercepts communications, uses, without authorization or consent, a private Password or PIN or otherwise obtains personal information of the other, which intentionally intrudes upon their privacy, then there can be severe criminal exposure, and civil lawsuits to deal with it.

Can I intercept my spouse's e-mails?

The relationship between home computers and family law issues continues to expand each and every year. In today's world, many divorces are based on instances of adultery and relationships with paramours that were formed in computer chat rooms and by on-line matchmaking services. In many of these cases, the parties are accused of accessing or intercepting each other's e-mails, or of removing hard drives altogether.

In my experience many spouses are busted for adultery by having their e-mails reviewed by snooping spouses. If you search the internet then you will find hundreds of computer programs that are listed for sale that will enable a person to retrieve deleted e-mails. We are now living in an information era. In the past the most prevalent way that a spouse was busted for adultery was by having them trailed by an investigator. In the modern world, computer snooping is the preferred method to uncover an adulterous affair.

An interesting issue that arises in many divorce cases is whether a spouse can retrieve e-mail messages and records of chat room activity without violating the Wiretap Act? There is no easy answer to this question. If the computer is located in the marital home, then in most cases the interception of e-mails will not constitute a violation of both the New Jersey and Federal Wiretapping laws. However, if a spouse tries to intercept e-mails on their spouse's computer at their workplace, then this action most definitely would violate several New Jersey and Federal laws.

What is the leading case regarding the illegal accessing of a spouse's e-mails in a divorce case?

The leading case regarding the accessing of a spouse's e-mails is White v. White, 344 N.J. Super. 211 (Ch. Div. 2001). This is the first reported New Jersey decision addressing the admissibility of a husband's "private" e-mail communications between himself and his girlfriend accessed by the wife's computer expert. This case was litigated in the Union County Family Court before the Honorable Judge Issenman. In the White case, this was a divorce action, and the husband filed a motion to suppress his e-mails that were stored on the hard drive of the family computer. The court held that the wife did not unlawfully access any stored electronic communications in violation of the New Jersey Wiretap Act, and the wife did not commit the tort of intrusion or seclusion by accessing those e-mails. Here the wife hired Gamma Investigative Research, which copied the files from the hard drive. The files contained e-mails and images he had viewed on Netscape. The company sent the wife a report on the content of the files. The husband's e-mail program on AOL requires a password.

The court denied the husband's motion to suppress the e-mails on the grounds that the wife's action violated the New Jersey Wiretap Act. Finding that the e-mails had been stored; i.e. saved, "post-transmission" in the husband's personal file cabinet (PFC), the court held that the Wiretap Act only applies to communications that are in transmission, and not those that have been previously sent and saved.

The White court further held that the wife's accessing the husband' "private" e-mail communications did not constitute an invasion of privacy since the husband had no objective reasonable expectation thereof. The evidence was such that the e-mails were accessed from a computer maintained in a sun room that the husband had been occupying during the parties' in-house separation; that the wife and the parties three children were in and out of the room for various reasons, including to use the computer; and that while easy to do, the husband failed to employ any privacy protection mechanisms to preen unwarranted intrusions into his PFC. The court also found that the wife's arguable snooping into her husband personal affairs to learn information about his possible affair was no uncommon under such circumstances.

The White court also drew a distinction between e-mails that were in active transmission, as opposed to post-transmission storage. When e-mails are in post-transmission storage, they do not fall within the definition of "electronic storage" within the purview of the New Jersey Wiretap Act. Thus, it was not unlawful for a wife to retrieve and use a husband's e-mails that have been stored on the family's computer hard drive, when the wife had access to the family's computer, and did not use a Password without the husband's consent or knowledge. The court reasoned that the husband did not have an objective reasonable expectation of privacy in e-mails stored in the family's computer hard drive, where the computer was in a family room and the entire family had access to the computer.

The major point of the White case is that once e-mails are downloaded from the e-mail server, they are not stored for the purpose of electronic transmissions, and they are thus outside the protections of the wiretap act. Further, the wife was able to access the files without a password by going through other files.

What are the other potential legal ramifications of illegally accessing my spouse's stored computer files?

In many cases a spouse who suspects adultery will hack into their cheating spouse's computer files and e-mails. As discussed above, if the computer is not located in the marital residence, then this intrusion will constitute a violation of both New Jersey and Federal Wiretapping laws. In addition, there may be some tort liability as well. Hacking into your spouse's computer may constitute the common-law tort of the invasion of privacy or invasion of seclusion. Hacking into your spouse's computer also could be considered to be a theft charge. However, in my experience it is very unlikely that any prosecutor would file any type of criminal charges if a spouse hacked into a home computer. The prosecutor may be more interested in pursuing theft charges if the computer hacking occurs on the cheating spouse's computer that is located at his place of employment, or from a computer system from a corporation or a financial institution.

What is the current status of the law with regard to the interception of a spouse's e-mails and computer records?

With the massive amount of internet sex in the world, and the resulting divorce litigation, wiretapping violations are prevalent in many divorce cases. A spouse who tries to prove adultery by retrieving messages from hard drives, internet services, recycle bins, or other areas of storage, could clearly be in violation of both New Jersey and Federal Wiretapping laws.

In summary, the information that was obtained to verify the adulterous relations may be invaluable on a personal level. However, any evidence that is obtained by illegal wiretapping or by illegal hacking into a spouse's computer should not be used as leverage in a divorce case. An experienced divorce lawyer can actually use the act of illegal wiretapping as the grounds to file a civil suit against the violating spouse. The civil suit will be filed as part of the divorce case and it is called a Tevis claim. The cheating spouse can actually use the wiretapping violation as a bargaining chip to obtain a more favorable divorce settlement.

What are the possible legal ramifications if one spouse has obtained the unauthorized access to his spouse's stored computer files?

When one spouse retrieves stored computer files or e-mails by utilizing the other's password without their permission, then it may constitute a violation of the Wiretap Statute, if the information is in the transmission stage and not in post-transmission storage. In addition, there is a common-law tort of the invasion of privacy or invasion of seclusion. This unauthorized access may also invoke criminal penalties for a computer related theft.

If I bust into my husband's computer files does this constitute a violation of the New Jersey Wiretap and Electronic Surveillance Control Act?

The basic rule of the New Jersey Wiretap and Electronic Surveillance Control Act is that the interception of wire, electronic or oral communications, by means of electronic, mechanical or other device(s) is illegal. N.J.S.A. 2A:156A-1, et seq. It is, therefore, illegal when one spouse records the communications of the other spouse, including retrieving e-mail transmissions.

If the unauthorized access is from a computer system, such as a corporation or financial institution, then there exists the common-law tort of the invasion of privacy, as well as the civil remedies under the New Jersey Wiretap Statute. Additionally, accessing a computer system will violate the criminal statutes of N.J.S.A. 2C:20-25 (Computer-Related Theft), N.J.S.A. 2C:20-30 (Damage or Wrongful Access to a Computer System), N.J.S.A. 2C:20-31 (Disclosure of Data for Wrongful Access), and/or N.J.S.A. 2C:20-32 (Wrongful Access to a Computer).

Thus, if a spouse uses, without authorization or consent, a private Password or otherwise obtains personal information of the other spouse, which intentionally intrudes upon their privacy, there is redress.

Is it legal to use spyware to snoop on your spouse?

Cyber adultery is a commonplace phenomenon and it is often the start of a divorce. Many married couples are now using spyware to spy on their spouse. The legality of the use of spyware is very murky. There is very little guidance as to the legality of spyware. Generally speaking, spyware is software that is installed on a computer without the target user's knowledge and it is meant to monitor the user's conduct. In most divorce scenarios the spyware is used to monitor the user's e-mails and chat rooms. Spyware will also record everything the user does, including record keeping, using a work processing program to draft letters to counsel, or the keeping of business records.

As of the date of this article, there are no federal laws that regulates spyware. There are many proposed laws have been proposed in Congress, but none have passed. Attempts have been made to apply the anti-wiretap laws to spyware, but they have not fared well.

Many of my clients arrive in my office with printouts of their spoues's e-mails that scorch your eyebrows as you read them. They are very pleased with their ingenuity and resourcefulness to acquire these e-mails. However, many clients are blissfully unaware that they may have broken the law by obtaining these e-mails. Many spouses have the common belief that the family computer belongs to both of use to I can do anything that I want. When I advise these clients that they may have broken a law, they became red faced, and are stunned to think that the "guilty" spouse now may have a cause of action against the "victim."

I have installed spyware on our family computer and my husband is not aware of it. Should I leave the spyware on the computer?

Take the spyware off. There are no excuses to keep it on. Even though it is murky whether spyware may be legal in New Jersey, or whether it is legal to have it installed on a family computer. odds are great that federal law will soon criminalize this behavior. It is a fact of life that many of my clients seem unable to "pull the plug" on their spying. In many cases, the spying itself often becomes an addiction, and the perpetrator is unwilling or unable to break the habit. If a spouse insists on using spyware, then he or she will likely end up getting in trouble rather than the spouse who is actually engaging in the bad conduct. Moreover, if the spyware is not removed, then the cheating spouse could possibly use the invasion of his privacy as grounds to file a Tevis claim as part of the divorce case.

Is spyware evidence admissibility in a divorce case?

As computers and other forms of electronic communication have become very common in the modern world, it has become much easier to follow a spouse's electronic tracks. In cases where a marriage is breaking down, it is often hard for a spouse to resist the relative ease of intercepting or spying on the electronic communications of the other spouse, either to verify adultery in order to gain ammunition for the eventual divorce. However, despite the wealth of potentially incriminating information that a spouse may acquire in this manner, there are numerous obstacles to the use of this information, including the possibility of a criminal prosecution. In general, the interception of a spouse's electronic communications may run afoul of state and federal wiretapping statutes such as the Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C. 2510 et seq.

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