Technology has made it possible for us to be more connected to one another than ever before in history. Text messages can be transmitted instantly, phone calls can occur between individuals separated by thousands of miles, and social media sites like Facebook and Twitter allow us to tell friends and others what we are doing at any given moment. While these advances help us stay connected to the people we like, they can also be used by people who want to keep track of us.
Electronic snooping is an increasingly common issue found in divorces and family law cases. Aside from the spurned ex-spouse, other interested parties in these cases can employ any number of means to catch private details about you in hopes of using that information against you in court.
It might be, depending on what the “snooping” consisted of and the parties involved. In particular, the following activities are generally prohibited by federal or Michigan state law:
However, it is not considered snooping – and thus not illegal – for a person to:
Under Michigan law, MCL 750.539(C), any person who uses any device to eavesdrop upon a conversation of another “without consent of all parties” or who knowingly aids another in the same, is in violation of the law and is guilty of a felony. Basically, this means that you cannot put a security camera in your wife’s bedroom to catch the cheater (however, if you have a home security system that records automatically it is not subject to this law).
Also, keep in mind that the Federal eavesdropping act 18 U.S.C. § 2511 (1) basically makes the same action illegal and subject to fines and jail up to 5 years.
However, courts largely allow the recording of a conversation between a parent and his or her children, which is done for the purpose of protecting the safety and well-being of the children.
A conversation, which you are a part of, cannot qualify as eavesdropping, and recording such a conversation does not violate the statutes (both state and federal). See Sullivan v. Gray, 117 Mich. App. 476.
However, keep in mind that the Federal act makes it a crime to use another person to illegally intercept communication. In laymen’s terms, this means that using another person to illegally record (violate the law) does not insolate you from liability.
Also, any recording obtained in violation of the Federal law is not federally barred from being used to impeach a witness (to show a lie).
Michigan and the Sixth Circuit court have booth refused to allow an interspousal wiretapping exception. See Pollock v. Pollock, 153 F3d 601; Williams v. Williams, 229 Mich. App. 318 Therefore, if you record your spouse, you should always comply with the law and be a part of the conversation, or fit your recording in one of the narrow exceptions mentioned above.
However, there are exceptions to this rule: (1) For parents tracking a child where they own the child’s vehicle; (2) For private investigators; and (3) For leaseholders.
Reading email stored on any computer to which you have access (a.k.a. password and consent) is not illegal. However, using a keystroke logger is. Federal law, 18 USC §2701-2720, prohibits using a keystroke logger.
A better way to get data is to include an electronic data provision in any mutual restraining order. This provision should prevent any party, and their agents, from deleting electronic data on any media including computers, cell phones, and external hard drives. Preventing loss of electronic data is key to discovery in any civil case.
Allowing your information to be taken can be very dangerous to your case. This is because even if your information is taken or recorded illegally, it is not barred from being used to impeach (to show a lie) you or another witness. Further, keep in mind that as mentioned above, a private investigator can track and follow you with advanced methods.
If you fear that you are being stalked online – that is, the other parent, your ex-spouse, or some other person – is harassing you electronically, you may be entitled to file for an order of protection against this individual. An order of protection would instruct the subject of the order to refrain from further engaging in harassing behavior. If the person continued to do so, it may be considered a crime and/or be punishable by the court’s contempt powers.
More than ever, it is important to be able to prove that your opponent is lying to the court. With courts seeing increased caseload, they tend to have less time to investigate the truth. That is why concrete proof of another party’s actions is the key to a successful case. Using legal methods of digital discovery avoids the dangers of violating the law, while also securing your case’s presentation to the court.
In a family law case, just because some forms of electronic snooping is illegal does not mean that information you put online can never come into court. There are discovery methods whereby your spouse’s/the other parent’s attorney can obtain e-mails, social media posts, and other similar information legally.
The Grand Rapids family law firm of Van Den Heuvel Law Office is committed to helping clients embroiled in family law disputes protect their rights and legal interests. If you are concerned that your privacy may be in jeopardy – or if you are concerned that your own activity may be crossing a line – contact us at (616) 698-0000 for assistance.
To talk with our attorney about your legal concerns, contact the Van Den Heuvel Law Office by calling 616-698-0000. You may also complete our online contact form. After-hours consultations are available by appointment. We are also available on Skype by appointment.