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Digital spying on the rise in divorce cases, but is it legal?

A recent NPR story looked at the rise of digital spying among divorcing spouses and talked to a panel of experts about what the law allows. All the experts agreed that they are seeing more clients either bringing them evidence obtained through digital spying or telling them that they are worried about being spied on. All the experts also agreed that obtaining information through digital spying tools – such as GPS trackers, computer spyware, or voice recordings – is usually illegal, depending on the circumstances of how the information was obtained and the laws for the state in which the spying happened.

I’m Judy A. Oxford, an attorney with experience in divorces in Franklin and other cities in Tennessee, and I talk to clients all the time who have either used digital spying tools or who are worried about their spouses spying on them. It is, indeed, a growing problem. In Tennessee, there are some laws relating to this. In most cases, obtaining any information digitally without the permission or knowledge of the other person is illegal. That means that if you do something like break into your spouse’s email or use their phone to track their movements, you could end up creating a lot of trouble for yourself. You may get less in your divorce settlement, and you could be subject to criminal prosecution that could result in big fines or jail time. Some digital spying is a felony in Tennessee.

For example, many people use GPS tracking devices to figure out that their spouses were not where they said they would be. They try to use this as evidence of infidelity or other impropriety. But Tennessee law says that it is a criminal offense to put a GPS tracker on a car or other motor vehicle for the purpose of tracking someone in that vehicle, unless you have the consent of all the owners of the vehicle. If there are two owners – which is assumed for any car that is acquired during the marriage, even if it is just in your name – then both owners have to consent to having the tracking device involved for the purposes of tracking someone in the vehicle, and this includes each other. There are some situations where putting a tracker on the vehicle may be permissible, such as when there is a tracking system installed by the manufacturer of the vehicle, or the tracker is put on for the sole purpose of monitoring a minor child who is in the vehicle, or if the tracking device is for the purpose of finding the car in case it is stolen. Agreeing to have the tracker for those purposes is most likely not the same as agreeing to have the tracker to monitor each other’s movements, and the law may not treat them the same. The law in Tennessee does not specifically address putting a tracker on a personal cell phone, however, the judge may very well extrapolate from the law that prevents putting a tracker on the car. Even if the phone is in your name, if your spouse is the one who uses it all the time, your spouse probably has an expectation of privacy.

Tennessee law allows a person to make an audio recording of a conversation in which they are a part. The law is that it is permissible to record the conversation as long as one person consents, so you can record conversations you are involved in without getting the consent of the other persons who are also in the same conversation.

However, if you try to make a recording of a conversation involving other people without their knowledge, and you are not present at the time of the recording, that’s against the law.

We generally believe that you are allowed to have a camera in your home, such as you would use for monitoring the babysitter when you are away, but you may need to post a notice that there are video cameras in the home. The law is not real clear about this. Even then, if you use a camera in a bathroom or bedroom where someone is expected to have privacy, that would most likely be considered illegal.

Tennessee also has a law making it a crime to intentionally intercept any wire, oral, or electronic communication. So, installing software, spyware, or other tools on a person’s computer or cell phone to be able to intercept communications would be illegal. The same is true for hacking a person’s email. Some people believe it is illegal to read someone’s email when it is left open on a computer.

If you obtain evidence through one of these means, not only could the information not be admitted in court, but the judge will likely look unfavorably on you and could make a ruling that favors your spouse. The worst-case scenario is that your spouse will be able to bring a civil case against you for damages, or that the state can prosecute you for committing a felony. You could be ordered to pay thousands of dollars in fines, court fees, and lawyer fees, and you could even be ordered to spend time in jail.

The best thing to do is to work with a divorce attorney like myself. I help clients uncover the evidence they need in their divorce case through legal and ethical means, including hiring a trusted private investigator or forensic analyst who knows Tennessee laws and adheres to them. It is always better to work with an attorney and the appropriate professionals to get the evidence you need to show infidelity, financial wrongdoing, or other impropriety that affects your divorce or child custody proceedings.

Call my office at (615) 791-8511 or use the secure online form to schedule a free consultation. Let me help you get the divorce settlement you need. I practice in Franklin, Nashville, Columbia, Lewisburg, Murfreesboro, and Dickson County, and other middle Tennessee locations as well.