Getting Divorced? Four Cautionary Tips about Accessing Your Spouse’s Electronic Information

by Jaburg Wilk

Jaburg Wilk

Question:  I know my spouse’s passwords to their social media accounts, bank accounts and/or email accounts, can I log into their account and get the information we need to help win my case? 

Answer: While this might sound like a really good idea, you shouldn’t do this for a few reasons. First of all, even though your spouse may have given you their passwords while things were going well.  Presumably if you’re in the middle of divorce or a family law matter, they don’t actually want you to access to their accounts. This most likely means that you would be breaking a number of federal laws when you access their accounts.  These laws include the Stored Communications Act (“SCA”), the Electronic Communications Privacy Act (“ECPA”), and the Computer Fraud And Abuse Act (“CFAA”). It may also mean that you’re breaking state law, such as A.R.S. §13-2916, which prohibits using an electronic communication “with intent to terrify, intimidate, harass or threaten a specific person”, or A.R.S. §13-3005 and/or 3016, which mirror their federal counterparts in the ECPA and SCA.

Most importantly, you are going to be able to get this information through discovery in your case. Trust your lawyer and trust the process. You’ll get there, and you won’t go to jail in the process. 

Question:  Can I install keylogger software on my spouse’s computer?

Answer: A keylogger is either hardware or software that records in real time the activity of a computer user, typically in a covert manner so that you don’t know you’re being tracked. Keystroke logging is an interesting tool, but it will probably get you into the same type of trouble as accessing an account that you know the password for. Using a keylogger means that you are intercepting electronic data.  This is a direct violation of the ECPA. There also might be state laws that you have to deal with, because each state has their own laws about the interception of electronic data. 

Question: What about installing a GPS tracking device on my spouse’s vehicle?

Answer: GPS tracking has different but similar problems to that of a keylogger tool. With GPS tracking, you either install software on someone’s phone or you put a physical device on their vehicle to track their location. Each of these can create different legal problems for the end user. With a physical GPS tracking tool that is installed directly onto a vehicle, there are typically no electronic privacy issues that need to be addressed. This doesn’t mean that you are in the clear though. In 2012, the United States Supreme Court held that law enforcement use of GPS trackers to monitor movements constitutes a “search.” That means the technology falls under the Fourth Amendment’s protections against unreasonable searches and seizures, requiring a warrant for using that tool.

From a domestic litigation perspective, it would appear that the only issues are the possible perception of harassment or an invasion of privacy. Those are difficult claims to substantiate, but you need to tread carefully depending on the types of preliminary orders that may have been entered in your case. With GPS software installed on a cellphone, you have the same problems with a physical tracking tool. Additionally, you have the problem of having accessed someone’s phone without their permission, which can create additional potential claims against you for conversion (theft). And, in some states (like California and Texas); it is a misdemeanor to use a tracking device, unless the vehicle is jointly owned and one of the owners gives permission for the tracking.

Of course, there is always the built-in tracking on the iPhone, which is the “Find My Phone” app. If you have access to the iCloud account of the phone, you can find out where the phone is located at any given time. This is ostensibly permitted, although it may leave a bad taste with the Court, so tread carefully with using this feature.

Our advice is to proceed with caution if you’ve already made up your mind to use this technology. While there has not been any truly definitive statement that this technology is per se illegal, we can’t recommend that you use any of these tools.  

Question: My spouse keeps all banking and financial accounts on a laptop computer, can I get possession of the laptop and get a copy of the hard drive?

Answer: Yes you can – through proper legal process, such as a subpoena or a request for inspection, and only to the extent that those records are relevant to your case. You have to limit the scope of your discovery to issues that are relevant to the proceedings. For example, if you don’t have children, then the fact that your spouse might do inappropriate things in their free time on the weekend probably doesn’t have much bearing on your case, despite how interesting you might find it to be. The same goes for bank accounts, because if you aren’t fighting over assets, then there is no reason for you to see how your spouse is spending money. If those issues are before the Court, however, you will have the opportunity to investigate them. We have a number of tools at our disposal, including discovery and depositions, which allow us to look into what your spouse is doing with their accounts, whether electronically or otherwise. If you know what accounts your spouse is accessing, you can get information about most of those accounts directly from the source such as the bank or social media platform. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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