Spying on Your Spouse Before or During a Divorce

Spying and DivorceA Cincinnati, Ohio woman, Catherine Zang, is suing her ex-husband, Joseph, in federal court maintaining he illegally installed a hidden video camera and microphone in their home and a computer-tracking software device to spy on her online communications.

The plaintiff and an unnamed online “friend” are also suing the husband’s lawyer in the action seeking damages of several hundred thousand dollars on the basis the defendant violated federal and state wiretapping laws and engaged in invasion of privacy.

Ms. Zang discovered the devices after her husband’s divorce lawyer, Mary Jill Donovan, indicated that she had evidence which would portray Catherine Zang in an “unflattering, embarrassing manner.”

In Ohio and 38 other states, if at least one party involved in the conversation has given permission for the conversation to be recorded (this can include the person doing the recording), there is usually no liability. But in the Zang case, problems may arise because Mr. Zang was not always at home during the tapings, and he was not a party to the online chats.

Interspousal surveillance should not be indulged in recklessly primarily because it is often a violation of state wiretap laws and the federal Electronic Communications Privacy Act of 1986 (formerly the Omnibus Crime Control and Safe Streets Act of 1968.)  The Privacy Act covers the interception and disclosure of wire, electronic, and oral communications.

Additionally, there can be civil penalties for such torts as invasion of privacy and intrusion into another’s seclusion and the spied upon spouse may claim the intrusion caused emotional distress.  All of these damages, if found to be actual, can be offset against marital assets, or the court may order an outright award to the afflicted party.

Criminal charges such as computer misuse, disclosure of data through wrongful computer access, and computer-related theft can also be filed against the “snooper” even though they may have been the wronged party in a divorce action.

The key issues are–the method used to spy, whether the person under surveillance had a reasonable expectation of privacy in the area where the intrusion occurred, and whether there is shared ownership of the devices in question by the parties.

A “reasonable expectation of privacy” means that every person has a subjective expectation of privacy (that society accepts as “objectively reasonable”) which allows him to control his autonomy, dignity and serenity including the right to conduct personal activities without observation, intrusion or interference.

If one spouse hires someone to do surveillance and that party uses illegal methods, the hiring spouse can be held liable for the investigator’s actions.  Others who use data that another collected, such as in the Zang case, may also be found responsible.

In three prominent interspousal surveillance cases, discussed herein, the defendant prevailed, but the overall trend seems to be toward a crackdown on suspected illegal action.  Persons aggrieved by conduct which violates the Wiretap Act will be more likely than ever before to obtain redress under its provisions.

In White vs. White (2001), a New Jersey husband complained his wife had hired an outside computer operator to copy e-mail files and images from his hard drive, and had then sent her a report on their contents.  Mr. White claimed Mrs. White was guilty of violating the state Wiretap Act and that she had invaded his privacy.

The court held that the Wiretap Act applies only to communications in transmission, not to those previously sent and saved. Thus, Mrs. White did not access any stored electronic communications.  Mr. White had no reasonable expectation of privacy in the computer, nor did his wife invade his privacy, the judge commented.

The judge noted that Mr. White was living in the sun room of his house (due to the impending divorce) and that Mrs. White and their three children went in and out of the room and had free access to the computer.  Mr. White failed to employ any privacy protection mechanisms on the computer, the court said, and he was aware his wife used the computer frequently.

Mrs. White also accessed her husband’s files without using a password, avoiding a potential violation for using another person’s password without permission.

In a 2011 Michigan case, 33-year-old Leon Walker faced felony charges and a potential five-year jail term for reading his wife’s e-mail to determine if she was having an affair.  He said he was trying to protect the couple’s children.  Walker, a computer technician, and his wife shared the laptop on which Mrs. Walker’s privacy was allegedly invaded.

The charges were dismissed after it was discovered Mrs. Walker was reading text messages on her husband’s cell phone.  The two parties are no longer married.

In another New Jersey case, this one also originating in 2011, Kenneth Villanova sued his wife and a private investigator for invasion of privacy and permanent emotional distress.  His wife, at the suggestion of the investigator, placed a Global Positioning System (GPS) in the glove compartment of their jointly-owned car where it remained for 40 days.

In this case, the judge ruled there was no expectation of privacy because the vehicle was shared by the couple and the GPS tracked Villanova’s movements on public streets and did not track movements not in public view. Regarding the permanent distress claim, the court noted that Villanova had never produced evidence of seeking medical treatment for his distress.

All of these cases would have vastly different if a tracking device had been placed on a paramour’s vehicle, or if a computer at a spouse’s workplace had been hacked instead of a home computer.

Those involved in a divorce action should be especially careful about employing any kind of spousal surveillance and should consult their lawyer before undertaking any action.  A decision to “snoop” may be costly in more ways than one.  A party does not want to arrive at divorce court to find invasion of privacy charges filed against them. Violation of state or federal wiretapping statutes can have even more serious consequences.

For legal advice about a divorce or dissolution or to speak to a divorce lawyer who is experienced in Ohio law, contact the law offices of Slater and Zurz LLP at 1-888-760-8958.  You can also contact us through our website:  dissolutionanddivorce.com.

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About slaterzurz

Slater & Zurz LLP is an Ohio law firm of highly experienced and respected attorneys. Over the last 40 years, we have developed a reputation for getting positive results for clients. We've been trusted with handling over 20,000 personal injury cases and our clients have received more than $120,000,000.

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