Eavesdropping, Spyware, and Wiretapping in Divorce Proceedings

 Posted on April 22, 2015 in Divorce

Divorce can be messy, and some couples will stop at nothing to “get back at” one another for wrongs that have been done during a marriage. However, some actions that divorcing spouses undertake go beyond the bounds of the law, including intercepting private communications.

Under federal and Illinois law, wiretapping is illegal. When one spouse eavesdrops on the other’s conversations by tapping into their phone line, the guilty party can face jail time and hefty civil penalties. The spouse whose privacy rights have been violated can seek equitable relief, such as an injunction, declaratory relief, which affirms that what the other party has done is wrong, compensation for any economic damages suffered, and punitive damages which aim to make the responsible party hurt financially.

Privacy laws exist to protect individuals engaged in conversations, including phone calls. However, these laws have failed to keep up with the rapid advances in technology. Laughably, Illinois law still makes reference to telegraph lines. These arcane statutes have been stretched to apply to the rapidly evolving forms of communication that we use now, including emails, text messages, Facebook messages, and other social media.

The most important factor in determining whether a violation of wiretapping laws has taken place is whether an interception has occurred. In the context of email, a malware program that generates a copy of every email sent would be considered an interception, but hacking into an account or server where messages are stored would not fit the definition.

In past years, many parties involved in divorce proceedings have attempted to bring evidence collected using spyware, including screenshots and keystroke logs, into consideration in their divorce cases. In fact, many spyware programs have been developed to cater specifically to spouses who anticipate divorce and want to prepare to build their case against their partner. In spite of many convincing arguments that the use of spyware constitutes wiretapping, Illinois state courts are more persuaded by the assertion that individuals have no true expectation of privacy when using a home computer or other device. On the other hand, some federal courts have equated spyware with illegal wiretapping.

See a Local Lawyer for Advice

If you are concerned that your spouse has been employing spyware to track your online activities, a family lawyer who is aware of this developing area of law can help you understand what your legal remedies may be, if any. If you have used such software to collect information about your spouse, and are unclear on how it can be used in a divorce proceeding, it is wise to consult with an experienced DuPage County family law attorney before you seek to bring it forward. The team at Davi Law Group, LLC will answer any questions that you may have regarding the impact of the wiretapping law on divorce cases, and can lay out your legal options. Contact our Chicago area offices today for a free consultation.