Charlotte Family Law Specialist
Request a Consultation 704.343.8811

Does Wiretapping Your Spouse Break the Law?

As communications technology becomes more sophisticated, so does the ability for someone to record another person’s conversation secretly. Surveillance is a hot topic regarding national security and the government’s authority and capacity to conduct surveillance on American citizens domestically and abroad.

However, surveillance can also be a concerning issue between private individuals. With nearly everyone with a smartphone being armed also with a camera, it’s hard to argue that anyone has a reasonable expectation of privacy. The temptation to engage in surveillance is particularly concerning between conflicting spouses who are going through a divorce.

Federal Law

The federal Electronic Communications Privacy Act—also known as the Wiretapping Act—prohibits wiretapping by imposing criminal penalties and civil liability on “any person who…intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.”

Initially, federal courts held that federal wiretapping prohibitions did not provide a civil remedy for cases where a person recorded their spouse’s phone conversations with an interloper, reasoning that the law’s legislative history didn’t support that Congress intended to recognize such a remedy.

However, in subsequent federal cases involving federal wiretapping claims, courts imposed criminal sanctions on a spouse who tapped their former spouse’s phone conversation while they still lived in the marital home.

Significantly, federal courts have limited the application of the federal Wiretapping Act to interceptions of communications. The courts reasoned that the term “interception” implies some act that occurs simultaneously with communications as they are conveyed. As a result, federal wiretapping prohibitions do not apply to cases where a party passively receives their spouse’s e-mails.

However, if emails are copied and forwarded according to a secretly programmed rule one spouse applied to their spouse’s email account, it might qualify as an “interception” under the Wiretapping Act.

North Carolina Law

Many state laws have addressed the issue of wiretapping between private individuals, including spouses. Many state laws impose criminal penalties or civil liability for wiretapping. In 1995, the North Carolina legislature passed the North Carolina Electronic Surveillance Act which prohibits a spouse from recording the other spouse’s communications without their consent.

Like the federal wiretapping act, North Carolina’s wiretapping law only bars spouses from recording oral communications. As a result, secret video recordings of a spouse are only prohibited if said video contained an audio element of the spouse speaking.

The North Carolina Electronic Surveillance Act allows the recording of private conversations if one party to the conversation consents. Therefore, a spouse can presumably record their conversations with the spouse, since the recording spouse has obviously consented to it.

Admissibility of Wiretapping Evidence

While many cases show that wiretapping between spouses may serve as grounds for criminal or civil legal action, the issue typically comes up in divorce cases where one spouse attempts to admit evidence gathered through wiretapping. A majority of states, including North Carolina, deem wiretapping evidence between spouses to be inadmissible for such purposes.

Ask an Attorney from Krusch Divorce Resolution

Divorce can drudge up painful and powerful emotions that might lead someone to take extreme measures to discover secrets about their spouse—such as wiretapping. However, wiretapping may not be necessary if you were represented by a skilled attorney who could use legally and ethically acceptable means of discovering important information about your divorce. At Krusch Divorce Resolution, you can benefit from the resources and experience of seasoned divorce attorney, Alan Krusch. Mr. Krusch id dedicated to advising you on important issues that may affect your legal rights, and advocating for your interests in court.

Call (704) 343-8811 to arrange an initial consultation at Krusch Divorce Resolution, or complete the online request form today.

Categories: