Divorces that arise from infidelity can be especially painful. Some people are entirely shocked when they learn that a spouse has cheated, but often divorce lawyers hear clients say that they suspected something was going on behind the scenes.
People seeking divorce may wonder if it’s legal to seek proof of infidelity by searching through e-mails and text messages.
Both federal and North Carolina laws address the issue of privacy and modern technology. The Electronic Communications Privacy Act (ECPA) was enacted in 1986 to address electronic eavesdropping of many types of data, including e-mail, chat rooms, cell phones, text messages, Internet bulletin boards and voice-over IPs. It also covers phone wiretapping, which will be discussed in a subsequent blog post.
A person who violates the ECPA may face legal consequences for:
- Intentionally intercepting, using or disclosing any wire or oral communication by using any electronic, mechanical or other device, or:
- Accessing a wire or electronic communication without authorization.
Authorization is an important point when it comes to divorce. Many spouses know their partner’s e-mail password and have been allowed to access their messages before. If your spouse has routinely provided that permission, then the door may be open for you to legally look through whatever can be found there.
That doesn’t mean that you should hop on the computer and start rifling through mailboxes just because you know your spouse’s password. Consent and intention can be tricky areas of the law, and you don’t want to render any important communications inadmissible by interpreting your situation incorrectly.
For example, if a message was forwarded to you in error and it contains incriminating information, then it’s fine for you to use. But if your spouse gave you access to his or her e-mail only to view an electronic bill and nothing else, then you have not been authorized to do anything but that specific task. You would be breaking the law if you snooped around and may be subject to criminal charges.
Also keep in mind that the law makes a distinction between stored communication and information that is intercepted. If you unintentionally intercept an e-mail as events unfold, you are not violating the ECPA. Similarly, it is not a violation to access stored information on a computer, which is often relevant in divorce cases involving spouses who shared a computer in the home.
It is extremely important that you understand your legal rights – and your spouse’s legal rights – before you go searching for electronic proof of infidelity. While the law does provide possible openings for you to find evidence that will help your case, you also could be subject to civil and criminal penalties if you act beyond your authority. It is advisable to speak to a divorce attorney with an excellent understanding of federal and state electronic communications laws before spying on your spouse.
If you are considering a divorce in North Carolina, the experienced Raleigh divorce lawyers at Charles Ullman & Associates can help. To schedule a consultation with one of our family law attorneys, call 855-720-8103 or complete our online form.