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Legal to Secretly Spy on Your Spouse?

By Brett Snider, Esq. | Last updated on

Trust might be an issue if you decide to spy on your spouse, but eavesdropping on your husband or wife can also lead to legal consequences.

For those dead set on recording their loved one or surreptitiously following their spouse, there are some privacy laws to consider, along with some potential legal effects of using the fruits of spying in court.

Here's what suspicious spouses need to know:

Spying Has Many Forms

Keeping tabs on every aspect of your spouse's private life is a multifaceted endeavor. Here are just a few of the legal issues that may crop up in spying on your legal partner:

  • Reading email messages. You can practically read your spouse's email more easily than a stranger (even just by standing behind him or her), but if you log in to your spouse's inbox without his or her permission, you can potentially be charged with unauthorized computer access. In California, and many other states, this crime can be a felony.
  • Recording conversations. You may want to start recording phone calls between your spouse and yourself, or maybe your spouse and others for later use. Be warned, however, you may be legally allowed to record a conversation in which you are a party -- but not those in which both your spouse and the other person are unaware that they're being recorded.
  • Using hidden cameras. Since your spouse has a reasonable expectation of privacy in his or her own home, setting up hidden cameras around your marital home may run afoul of invasion of privacy laws. Any recordings that include audio will also be treated like recording a phone call.
  • GPS tracking. Following your spouse's movements using a GPS tracking device may provide you a treasure trove of dirt, but it may also violate his or her right to privacy. Some courts have allowed GPS spouse tracking so long as it is only used to follow movements along public streets.

Using Spying Evidence in Court

Assuming that you do dig up something on your spouse in the course of your spying, if you want to use it in court, you may need to overcome the marital communications privilege.

Often confused for the common law right not to testify against your spouse, the marital communications privilege can be invoked by your spouse to prevent evidence of conversations between the two of you while you were married.

Bottom line: Spying on your spouse may seem like a smart way to get revenge. But with the spousal communication privilege and privacy laws in place, it may not actually produce many court-acceptable pieces of evidence.

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