Family Law Attorney Explains Wiretapping and Interception of Electronic Information During a Divorce or Separation
If you are dealing with a family law issue, such as filing for divorce, trying to catch a cheating spouse, fighting over child custody or the like, there maybe times where one spouse knows of information or suspect information exists that would be help their case.
A lot of times this damaging information exists or has been transmitted over the phone, laptop, computer, or other electronic device owned by an opposing spouse or one of the spouse’s children.
The question is, are you legally able to access someone’s phone or computer or record their telephone conversations in order to obtain this information?
The answers on these questions vary from case to case, as your particular set of facts could make a big difference from another case, so it is always best to seek an attorney’s advice on your specific issue.
In the context of family law, the most likely target for wiretapping or electronic interception is going to be the ex-spouse or child. It is important to keep in mind, however, that despite the “family” relationship between the perpetrator and their target, the legal consequences for gaining unauthorized access to someone’s device can be severe.
Therefore, it is important to understand what the law does and does not allow. Both State and Federal law distinguish between what most would think of as traditional wiretapping (bugging someone’s phone or recording a phone call) and accessing someone’s phone or computer. A violation involving either one is subject to both criminal punishment and civil penalties.
North Carolina and federal law prohibits the contemporaneous interception of oral, wired, or other electronic communication where the person doing the interception does it intentionally and without authorization.
The interception must also take place during the time that the communication is occurring. For example, someone would have to be listening in or recording during the actual phone call.
State law does prohibit the access of such communication after their transmission where the communications are being stored by a communications storage provider.
However, because North Carolina is a “one party consent state,” only one party to a conversation must know or consent to the conversation being recorded for it to be legal.
This means an individual is well within their rights to record their own conversations with an ex-spouse or anyone else, or to have someone else agree to do so.
That being said, a legal parent or custodian can legally record their child’s conversations without their consent where the parent does so with the good faith belief that it is in the child’s best interest to do so.
You should always get legal advice before deciding to go down this route, as several judges do not condone this behavior and it is something you may have to show the opposing party as a part of discovery (exchanging information, documents, etc.).
Anyone in violation of this law in North Carolina is liable for a Class H felony and may be liable to actual damages and a minimum $1,000 fine for each violation. Under federal law, such a violation calls for up to five years incarceration or a criminal fine and the violator can be liable for a minimum of $10,000.
The law also prohibits an unauthorized person from accessing or manipulating any computer data or indirectly causing access or manipulation of such computer data.
This means that an individual doesn’t have to make a copy of such data; but rather simply accessing someone else’s phone or computer, or directing someone to do so, without authorization, is a violation.
However, this does not include marital property (property obtained during the marriage and for the benefit of both spouses).
For example, during the marriage a spouse can legally access and make copies of any data he or she finds on the family computer if it is marital property, especially if the computer is not password protected and/or each spouse doesn’t have their own login information (or the spouse has authorized access to the password).
An individual would not be covered if they gained unauthorized access to their child’s or ex-spouse’s personal cell phone. Violations of this statute become very case specific, so again it is important to seek legal advice before accessing a spouse’s information without permission.
Violations of this type under state law can range from a Class 1 misdemeanor to a Class I Felony, depending on the amount of damage done to the device being accessed.
Under Federal law, a violator is subject to a minimum $5,000 fine and up to six months imprisonment, as well as possible liability for a minimum $1,000 in damages, as well as punitive damages and attorney’s fees.
Due to the potential civil and criminal penalties, not to mention how it could affect your family law case, you should consult an experienced attorney before deciding on whether or not you are going to record or access your spouse’s cell phone, computer, or other electronically stored information.
Please note that when you are recording or intercepting calls in other states or across state lines, that you are not operating outside of North Carolina law, and should seek counsel in those states.
If you have questions or wish to schedule a low cost initial consultation with an experienced family law attorney, please give me a call today at 919-832-7700.