How Spy Tech Enables One Spouse to Monitor the Other

With advances in technology, it’s easier than ever to spy on your divorcing spouse in an effort to get information that will help your case. There are cameras and recorders on cell phones, as well as GPS trackers and features such as Find My iPhone. You can buy spyware online, hack into your spouse’s computer or “bug” your house and get information on how to do it all on the internet. You can make video and audio recordings of your spouse engaging in behavior that would cause the courts to look less favorably upon them and increase the chances of your getting better custody, equitable distribution, or maintenance arrangements.

But is spying on your spouse legal in Illinois, or can you get into trouble for doing it?  The answer is complicated and depends on the situation and motive, so before attempting to do it, you should be sure to know what problems you could be setting yourself up for.

The experienced and compassionate Illinois divorce attorneys at Wolfe & Stec, Ltd. know that divorce is difficult and understand the temptation to spy on a divorcing spouse.  We can provide professional guidance and advice as to what you can and cannot do in every area. We offer a free consultation to discuss your options. Contact us online or call 630-305-0222 for you free consultation.

What the Laws Say

Illinois Law:

Illinois law dealing with recording other people changed in 2014.  While the old law made it a crime to record any conversation, including your own, without the consent of the people being recorded, the new law added exemptions. Illinois is a “two party consent” state, so you need the other party’s permission or knowledge to record a conversation.

According to the new law, 720 ILCS 5/14-1

(a) A person commits eavesdropping when he or she knowingly and intentionally:

1. Uses an eavesdropping device, in a surreptitious manner, for the purpose of overhearing, transmitting, or recording all or part of any private conversation to which he or she is not a party unless with the consent of all of the parties to the private conversation;
2. Use an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party unless with the consent of all other parties to the private conversation;
3. Intercepts, records, or transcribes, in a surreptitious manner, any private electronic communication to which he or she is not a party unless with the consent of all parties to the private electronic communication.

Exceptions are as follows:

1)  Open and Conspicuous:  You can make open recordings under Illinois law if not done surreptitiously – “not obtained or made by stealth or deception or executed through secrecy or concealment.”

2) Obtaining Evidence:  You are allowed to record surreptitiously when you reasonably suspect that a crime is about to be or has already been committed against you or someone in your household, as long as you are a party to this conversation.

However, complicating matters are the exceptions to this exemption, which, if violated could cause you to be slapped with a disorderly conduct violation.  Illinois’ “disorderly conduct” law (720 ILCS 5/26, et seq.) limits video recording, unless it is to thwart crimes, even if done openly and conspicuously in the following situations:

1. In “Privacy Rooms” such as restrooms and hotel rooms, unless there is consent;
2. Inside or outside the person’s residence without consent;
3. Under or through the clothing without consent.

Illinois’ Computer Tampering Law — Hacking into a computer, smart phone, or tablet is a crime in Illinois. “Computer” means an electronic device which performs logical, arithmetic, and memory functions by manipulations of electronic or magnetic impulses and includes all equipment related to the computer in a system or network.

Geo-Tracking Devices and “Stalking” Laws — If you are thinking of using a tracking device on your spouse’s car to find out what he or she is doing, you might be accused of stalking if your spouse feels threatened or endangered. The law says:

(a-3) A person commits stalking when knowingly and without lawful justification, on at least 2 separate occasions follows another person or places the person under surveillance or any combination thereof and:

(1) at any time transmits a threat of immediate or future bodily harm, sexual assault, confinement or restraint and the threat is directed towards that person or a family member of that person; or

(2) places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint to or of that person or a family member of that person. (720 ILCS 5/12-7.3)

Federal Laws

The following are federal laws that may also come into play:

• The Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. § 2510-22, makes it a crime to eavesdrop or wiretap others.
• The Federal Stored Communications Act (18 USC 2701) is an anti-e-mail-hacking law that protects ISPs like Google and Yahoo.  Hacking into e-mail may bring criminal charges with punishments that include a fine and up to a year in prison for a first offense and up to five years for a second offense. Violations may also bring civil punishments, including a minimum award of $1,000 and, if willful, punitive damages of a minimum of $10,000, plus attorney’s fees and costs.
• The Federal Computer Fraud and Abuse Act ( 18 USC 1030) protects other data on non-ISP servers and applies to every office and home computer in the U.S.

Get Help – Contact Us For a Free Consultation

While you can use digital tracking technology legitimately to monitor kids or employees in many situations, you need to be careful when you use it on a spouse or partner.  Even if you acquire evidence, you may not be able to use it in court. And if you wind up stepping outside the law, using spyware and eavesdropping devices might cause more problems than it is worth.

Since divorce is so complex and emotionally sensitive, before attempting any kind of spying on your spouse, you should consult an experienced divorce attorney familiar with both federal and state laws. The skilled Illinois family-law attorneys at Wolfe & Stec, Ltd. have helped countless families dealing with divorce.  We will fight to protect your spousal rights and personal assets and guide you through each step of the pre-planning, divorce and post-divorce period, including dealing with surveillance issues.

For a free initial consultation with an experienced and compassionate DuPage County divorce lawyer, contact us online or call 630-305-0222.