Divorce breeds distrust. In today’s technology-driven society, distrust leads to cyber-spying. No doubt, when you are going through your divorce, there is often a compulsion to see what your spouse is up to. Some want to know if there is cheating and others just want financial information. It is important to know exactly what you can and cannot do however to avoid criminal charges.
Lawyer Turned Pinkerton Detective
Just after I left the prosecutor’s office, I took a job with Pinkerton. Allan Pinkerton opened his first office in the 1850s and the company is still around today. I was charged with selling Pinkerton’s services to lawyers. I told lawyers about the surveillance Pinkerton could provide and how detective services would help lawyers in their jobs.
In order to fully sell the service though, I had to know the service. And so I became a Pinkerton detective-if only for a short time. I got to protect the Weiner mobile from the PETA folks, I got to dumpster dive and send a 50-pound flowerpot to a guy on worker’s compensation who had a bad back. I got to sit in the van and watch the professionals take pictures of that same man with the bad back pick up the 50-pound flowerpot and put it on his porch. Stuff like that.
It was fun and exciting and I almost thought detective work would be better than the law. Back before we had cell phones and computers, spying on someone was done the old-fashioned way-by following them around. Following people around wasn’t illegal, but now with the internet and ease in which you can spy, some people are crossing the line and their behavior is becoming illegal.
Spying on Your Spouse in an Illinois Divorce
When Illinois implemented no-fault divorce, the need to catch your spouse cheating was no longer important. No one cared anymore if your spouse was a cheater. Now we have irreconcilable differences. But the law change hasn’t changed the person who still wants to know if their spouse is cheating, or the spouse looking for some kind of bad act by the other parent.
Listening Devices Used to Spy on the Other Parent
More and more, I see parents installing some sort of listening device on their children to spy on the other parent. Initially, of course, the devices were supposed to be spying on the children and not the spouse, but it is just too easy and tempting. We now see parents putting listening devices in the child’s teddy bear or on their backpack. These types of devices listen in on everything that is going on in the other parent’s home.
And it’s illegal.
Not only won’t you be allowed to use the surveillance in court to your advantage, but you could also be placing yourself into a criminal courtroom. You are not allowed to record a person without their knowledge, and when you do, you won’t be able to use the evidence.
Recording a Person in Illinois Without Their Knowledge is Illegal
Illinois Supreme Court Rule 219(d) provides in pertinent part as follows:
(d) Abuse of Discovery Procedures. The court may order that information obtained through abuse of discovery procedures be suppressed. If a party willfully obtains or attempts to obtain information by an improper discovery method, willfully obtains or attempts to obtain information to which that party is not entitled, or otherwise abuses these discovery rules, the court may enter any order provided for in paragraph (c) of this rule.
And Illinois Supreme Court Rule 219(c) provides in pertinent part as follows:
In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is willful, a monetary penalty…
Cyber-Spying through Use of Shared Property
This seems fairly straightforward until you look at parties’ shared property. When you both own the car and you both use the family computer, how does the court then treat spying?
One more than one occasion, I’ve seen the courts allow the spying if the asset is shared. You have a right to put spyware on your own computer as well as your car-since it is yours. In divorce court, unless your computer belongs to your employer, anything you own could be fair game for spying.
GPS tracking devices are easily placed on your car. They are so small; it is hard to find them. They could be in the back seat under the rug, in your glove compartment or in the wheel well. Checking for this type of device every day before you drive away would be nearly impossible. But if your car will be parked in your garage (and your spouse isn’t living with you), you might want to have a professional look for any type of device to make sure there is no spy device, and then keep your car in the garage and make sure your spouse has no access to your car.
Spyware in the Bedroom
Our firm dealt with a case where the husband placed spyware in his wife’s bedroom. She never saw it there, but comments her husband would make to her about her private dealings in the bedroom led to her hiring an expert to look for such a device. Once found, the husband denied putting it there.
But the tracking device generally has the name of the company it goes from and some sort of serial number associated with the device. A subpoena to the company revealed who purchased the device-of course the husband. You would be allowed to surveil your own home, so there isn’t any problem there, but once he moved out and he continued to surveil, then it becomes a problem.
Spying on Your Spouse Can Lead to Criminal Charges
An order of protection case, which can be civil in nature and not criminal, turned into a criminal case when the woman found a tracking device on her car after she’d obtained the order of protection. Many types of situations can lead to criminal charges when you spy on another person. If you are going through a divorce, you might want to have your devices checked for spyware.
Shared Devices and Knowledge of Passwords
If during the course of your marriage, if it was common to use your spouse’s phone, you likely knew the password to get into the phone. If you were given permission to access the phone at one time, and that permission was never revoked, technically it isn’t spying when you go into the phone to check for emails, texts, and photos were taken.
iPhones, iPads, and “Apple Sharing”
One of my favorite cases involved a couple that shared multiple devices and used the same Apple password. Have you ever looked at your iPad and discovered your texts and email are shared on both your iPhone on the iPad? Apparently, the husband in the case had forgotten this.
When he moved out, he took his phone, but his wife kept the iPad. She didn’t notice it at first, but then later discovered there were text messages on her iPad. When she opened those texts, she was able to see in real-time, the texting her husband was doing with his girlfriend.
- TIP: Change your Apple password … and maybe even your Apple ID.
Text Messages From Shared Devices Can Be Evidence
My client, to her credit, didn’t really care about the girlfriend since she needed him to move on, but the content of the texts was disturbing.
Her husband was plotting with the girlfriend to set her up for criminal charges so he could take possession of their child. He described how he was going to plant drugs in her car and make sure that they were found by the police. The details of what he was going to do were fairly elaborate. My client didn’t want to involve the police, but we did go in to get an order of protection.
On the stand, the husband denied that he was plotting anything against my client. When faced with his own text messages, he cried foul and wanted to keep the texts out of evidence. But the court ruled that it wasn’t spying since they’d both set up the devices to be linked together. The wife hadn’t put on any spyware or spied at all; all she did was read the texts on her I-pad.
This type of thing happens more than you know.
- TIP: It is essential to get your own Apple password when you are undergoing a divorce.
Family Sharing Plans and Spouses on Shared Phone Bill
With family sharing plans and multiple phone lines on a single phone account, it’s very common for couples to have a shared phone bill. But, people who are on the same phone bill also cannot expect privacy. A phone bill will list each call made and each text, along with the number called. It shows what day the call was made and at what time. Want to know who your spouse is texting at 3:00 a.m.? It’s on the bill.
- TIP: You cannot complain about your spouse reviewing their own phone bill, so divorcing couples need to remove their phone from the same bill.
Facebook – the Favorite Spy Tool
Then, of course, my favorite spy tool is Facebook. You cannot imagine the posts people make there. And it isn’t really spying when you are posting sensitive information to the whole world. If you have a custody case going on and you have a drinking problem, it just isn’t smart to post pictures of yourself guzzling large beers in a drinking contest. True story! I still marvel at that one.
- TIP: If you’re going through a divorce or custody case, do not post images or comments about your spouse or child’s parent that can be used against you.
Phone Tracking Mobile Apps
Don’t forget about trackers on your phone. “Find My Phone” and other Apps used to find your phone when it is lost is also able to show your spouse where you are in real-time. Make sure you remove all of those types of location tracking Apps from your phone when one of you moves out.
Text Messages, Voicemails, and Emails
Is there a problem using data received directly from your spouse? Like text messages and emails?
In fact in court, anything either of you say is called a “party admission” and can come into evidence. Voicemails are also fair game. So don’t get mad and leave a string of nasty voicemails on your ex’s phone. Remember Alec Baldwin and his custody battle with ex-wife Kim Bassinger? How stupid do you think he felt the day after he left that voicemail tirade his then 11-year old daughter?
- Think before you speak and remember that anything you say or write can be used against you.
Do You Think Your Spouse is Cyber-Spying on You?
If you are involved in a divorce and you become aware that your spouse has looked through your computer, read or intercepted your e-mails or otherwise eavesdropped on your conversations, let your divorce attorney know right away.
There are certain civil remedies to which you may be entitled, and your attorney can assist you in filing the appropriate petitions and motions to obtain such relief. Save any evidence you have of the eavesdropping or snooping (videos, witness statements, etc.) as these may be useful in a criminal investigation. Ensure your attorney knows what information you believe may have been compromised, as he or she can take measures to keep this information excluded from court hearings.
Consult A Divorce Lawyer Before Snooping
Spying can be a murky area and before you engage in it, you should consult with someone. You are allowed to have a friend sit right behind your spouse and his girlfriend at a restaurant to overhear what they say, (how can that be considered eavesdropping?!!) but recording that same conversation can be a problem.
It is always better to talk to your family law attorney ahead of time. Before you snoop, make sure that your activity falls within the bounds of the law. It is a lot easier to guide you before you engage in an activity that could lead to the exclusion of the evidence you worked so hard to get. More importantly, your lawyer’s advice can also keep you out of criminal trouble.
And by all means, if you don’t have an experienced family law attorney to consult with, be sure to get one. Going it alone can have devastating and lasting consequences. Contact Anderson & Boback to speak with one of our experienced lawyers to discuss your family law case and questions regarding evidence obtained through spying.