Electronic Spyware and Hacking During a Divorce: Don’t Do It

By Matt Grimshaw | November 28, 2023

Electronic Spyware If you’re involved in a tough or contentious divorce here in Texas, you may be tempted to look at your spouse’s text messages, email, or social media to find out what’s really going on. This curiosity is simply human nature and many divorcing spouses experience it when searching for a sense of closure. However, our experienced attorneys may remind you of the old saying, “curiosity killed the cat.”

Whether you’re thinking of recording phone calls and messages, hacking into your spouse’s email, or installing spyware on their computer, you should think again. Some attorneys and authorities call this “electronic eavesdropping,” and before you consider doing it, you should know that you can get into big trouble.

Texas laws on electronic surveillance

Texas is a one-party consent state: “This means that unless at least one of the parties to a conversation consents, both Texas and federal wiretapping laws make it a crime to record an audio conversation, either in person or over the phone, if the parties have a ‘reasonable expectation of privacy.’”

However, it is a crime to intentionally intercept or access unauthorized communications. This can include wire, oral, and electronic conversations without consent. When this invasion of privacy is particularly egregious, the court may consolidate it into the divorce proceeding, which can greatly affect issues like asset division or spousal maintenance, as a judge may offset damages to one spouse by awarding them more assets.

It could also affect your child custody rights. If you are charged with a crime, or if your actions lead a court to see you as unfit, then your right to parent your children could be affected.

The Federal Electronic Communications Privacy Act (ECPA)

The ECPA allows for criminal penalties as well as civil damages related to intercepting and disclosing electronic communications. These communications can include:

  • Telephone wiretaps and interceptions
  • Email messages and chat logs
  • Voicemails
  • Streaming videos
  • Recording (audio and/or video) private communications

Further, it’s also a crime to use or attempt to use any of these with the knowledge that it was obtained illegally. However, you should note that the ECPA prohibits only intentional and unauthorized interception or use of electronic communications. For example, your spouse has the right to expect privacy in their email account, unless they have consented to give you access to their email. On the other hand, any information they post on their public Facebook page would not be considered private.

Finding someone’s email password in a drawer or notebook, guessing it, or playing around until you come up with the right combination isn’t “lucky” – it may be considered hacking by the court. This also counts for passwords or PINs for any type of account. The fact that someone had a password to begin with means that they had a right to expect privacy. The same goes for keyloggers and spyware.

What about monitoring apps on my child’s electronics?

It’s not illegal to install spyware to monitor a child’s activity. As a parent, you have the legal right to install programs that monitor usage or the whereabouts of your child. However, you cannot use these programs to spy on your co-parent, nor to capture sensitive information like passwords, bank account numbers, or credit cards. We strongly recommend that if you do install this kind of software, you tell your co-parent about it in writing as well as verbally. This can protect you if your ex claims you were trying to spy on him or her.

What should I do if I know valuable evidence exists?

Do not try to collect hidden evidence on your own. If evidence is collected improperly, a judge may throw it out of court, making it unusable. If you believe relevant and important information exists on your spouse’s cellphone, email, or computer, consult with an experienced San Antonio divorce attorney from Grable Grimshaw. We can advise you on ways to approach these matters, and can work to secure a court order for the information.

But that doesn’t mean you can’t or shouldn’t make notes about what is publicly available. It’s not considered hacking or spying to:

  • Read publicly posted comments on social media. If the information is out there already, then there is no hacking involved.
  • Read any private messages sent to you that include information that is not otherwise public. You cannot control what is sent to you.
  • Access data from any accounts on which you are the primary account holder. In other words, if you and your ex share an email that you forgot to close out – say, one used to help weed out spam – and your ex continues to use that email, you are legally within your rights to access it.
  • Review any footage from a home surveillance system, such as a video doorbell or security cameras. If you have a “nanny cam” in your home, then it is not illegal surveillance to review that footage, nor is it illegal to view any footage which has been streamed live. What you cannot do, however, is send your child to his or her other parent’s house with a nanny cam.

We know you care about your children and their wellbeing. We also know that it can be frustrating if you believe your ex is violating a court order – and terrifying if you believe they may be hurting your child. The single best thing we can advise is that you contact us immediately if you suspect wrongdoing. There are legal avenues through which we can help you pursue a protective order or a restraining order, or prove that your co-parent is hiding assets or violating a court order.

The skilled San Antonio divorce lawyers at Grable Grimshaw can help you work through your divorce with informed guidance and practical advice. We keep the process calm and focused, and advocate for your best interests. We encourage you to fill out our contact form today or call us to schedule a consultation with an experienced divorce attorney.

Posted in Divorce