Think Twice Before Spying on Your Spouse in New Jersey

If you suspect that your spouse is having an affair, you're probably experiencing lots of different emotions: sadness, grief, anxiety, and suspicion. You may have even considered spying on your spouse by using some sort of surveillance equipment to find out more. Before you act on the impulse to snoop, you should know that some forms of spying are illegal.

Can I spy if I suspect my spouse is cheating on me?

Many people these days use all sorts of methods to spy on their cheating spouses. Hidden cameras, listening devices, or GPS tracking systems allow you to monitor your spouse's activities. Specific software can even record your spouse's computer use and online presence.

But most people aren't aware that using spying equipment on your spouse could be illegal. These folks may find themselves in a thorny legal mess unless they know the federal and local (New Jersey) laws that apply to spying.

Federal and New Jersey Wiretap Statutes

Congress enacted the Federal Wiretap Act in 1968 to protect wire and oral communications from being intercepted. New Jersey quickly followed suit and enacted an identical law called the New Jersey Wiretapping and Electronic Surveillance Control Act.

A lot has changed since 1968. Today, communications aren't just wire or oral; they're transmitted by all manner of devices – electronic, digital, and video. Both Congress and state legislatures have been trying to keep up with the fact pace of new technology. In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA), which updated Federal protections to match the dramatic changes in technology and to protect the privacy and security of communications transmitted by new forms of technology (e.g., emails). New Jersey amended its wiretap act in 1993 to regulate access of stored, electronic communications.

Both the New Jersey Wiretap Act and the ECPA may apply to your surveillance activities.

Although the laws are virtually identical, the penalties may be different. If you're accused of violating either of these acts, you should definitely contact a local attorney for help.

Common law invasion of privacy

Spying on your spouse by, for example, hacking into email accounts or monitoring computer usage could also constitute an invasion of your spouse's right to privacy. New Jersey recognizes each person's right to privacy, and if it's invaded, injured spouses may bring a civil lawsuit against a spying spouse, just as they could if someone other than a spouse, say a neighbor, invaded their privacy.

A civil lawsuit for invasion of privacy carries with it various potential damages, including monetary fines. In addition, any information gathered as a result of the invasion of privacy is generally inadmissible in a divorce proceeding (or any other court action).

For example, if you hacked into your spouse's email account to get copies of lurid emails you believe prove your spouse is an unfit parent, and a court finds that the hacking was an invasion of privacy, a judge will probably decide that the emails can't be used as evidence in the custody case.

Invasion of of privacy laws are somewhat complex. If you have questions about them, you should contact a local attorney for advice.

Can I intercept my spouse's emails?

There are hundreds of spyware programs and gadgets that enable a person to retrieve emails. These days, viewing a spouse's stored emails or online messages is the most common way to discover an affair.

There is no easy answer to the question of whether it's legal to do this kind of spying. If the computer is located in the marital home, then (in most cases) the interception of emails will not constitute a violation of wiretapping laws. However, if the emails were password protected, or they were stored on your spouse's work computer, trying to retrieve them could be a violation.

In one New Jersey case, a wife tried to use emails between her husband and his girlfriend as evidence in a custody dispute between the parents. The husband asked the court to reject the emails based on his right to privacy.

In this case, the emails were stored in an AOL folder located right on on family computer hard drive, and the wife didn't have to use a password or even access her husband's email account to get them. Moreover, the computer was kept in the family room.

Because they were easily accessible, the court found the husband didn't have a reasonable expectation of privacy to the emails, and they were admissible. The court also held that although the New Jersey Wire Tap act applies to "unauthorized access" of electronic communications of spouses, there was no violation of that provision either.

For the full text of this important court decision, see White v. White, 344 N.J. Super. 211 (Ch. Div. 2001).

If I do get information from my spouse's computer, can I use it?

If you learn things about your spouse's actions by hacking into a computer, you may find the information useful on a personal level if it confirms your suspicions about adultery or other wrongdoing. However, as stated above, any evidence that's obtained by wiretapping or hacking can't always be used as leverage in a divorce case—it may backfire in the form of a civil lawsuit or other retaliation, and it may not be admissible in court.

Can I use video surveillance to spy on my spouse in our home?

Video surveillance conducted in the marital home is generally permissible and not considered an invasion of privacy. However, in the outside world, an argument can be made that video surveillance is an invasion of privacy; the key issue is where the surveillance occurs.

Can I install a global positioning device (GPS) on my spouse's car?

Like checking a spouse's email, the legality of secretly planting a GPS tracker depends (in part) on who owns the vehicle. If you own the vehicle or have joint ownership of it, you start with a right to monitor its use with a GPS system. However, if the monitoring violates the other spouse's reasonable expectation of privacy, or constitutes stalking in violation of state law or in violation of any type of restraining order, then it's no longer legal.

In 2011, a New Jersey appeals court approved the use of GPS tracking devices to spy on cheating spouses. In this case, a New Jersey wife installed a GPS tracking system in the SUV she shared with her husband so that the private investigator she hired could track her husband's whereabouts. Through the use of the GPS device, the investigator was able to track the husband to his lover's home. The ex-husband then sued the private investigator for violating his privacy.

The court found that the installation and use of the GPS tracking device in the shared vehicle was not an invasion of the husband's right to privacy, because the GPS unit only tracked his movements in public areas, where he had no expectation of privacy.

This is rapidly changing area of the law. If you have questions about using a GPS tracking device or other technology to spy on your spouse, you should speak with an experienced family law attorney.

Can I intercept my spouse's phone conversations without permission?

The New Jersey Wiretap Act prohibits spouses from illegally recording the communications of the other spouse. However, there appears to be an exception to this general rule; it is not unlawful for a person to intercept a wire, electronic, or oral communication, where such person is a party to the communication So, it may be ok to record a conversation, but only if the person that's doing the recording is a party to the conversation. (See N.J.S.A. 2A:156A-4 (d).) There is no exception for recording conversations between your spouse and someone else. Recording those conversations is a violation of wiretap laws.

Can I intercept my spouse's cell phone calls?

New Jersey's wiretap statute defines a wire communication to include "any electronic storage of such communication, and the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit." Thus, under New Jersey law, cell phone communications are treated the same as landline (phone) communications.

Resources

For the full text of the New Jersey decision on the use of GPS to spy on your spouse, see Villanova v. Innovative Investigations, Inc., 420 N.J.Super. 353 (App. Div. 2011).

For the complete text of the New Jersey Wiretap Act, see N.J.S.A. 2A:156A-1 et seq.

For the complete text of the Federal Wiretap Act, see 18 U.S.C. § 2510 et seq.