Spys Like Us
COVERT COMMUNICATIONS—When is it “OK” to record a conversation with my spouse or my chidren in the context of a contested divorce case?
The two most frequent areas where electronic surveillance is used in litigation arise in the context of commercial espionage, and in domestic litigation. As formerly “high tech” surveillance technology is now available at a relatively low cost to anyone with an internet connection and a credit card, the issue of whether, and how, my clients may record and document conversations with their spouses or children has become a regular part of my practice. It is an important area to address at the outset of litigation, because the laws regarding privacy and surveillance are complex , vary from state to state, and can result in civil and criminal penalties for violations. This means that if your spouse moves with your minor children across state lines, you may be invoking the laws of a foreign jurisdiction or the federal government if you initiate surveillance or attempt to record a conversation with him or her. Not only could you subject yourself to civil and criminal penalties, but you could make otherwise valuable evidence inadmissible at a future hearing in your divorce proceedings.
The Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act, commonly grouped together as the Electronic Communications Privacy Act, or ECPA, comprise the set of federal laws which prohibit both private citizens and law enforcement from engaging in certain types of electronic eavesdropping. Congress passed the ECPA in 1986 to update the Federal Wiretap Act of 1968, which attempted to protect citizens’ privacy by proscribing the use of recording devices in the use of telephone lines. As with most things, technology evolved beyond the scope the original lawmakers could have foreseen. In 1968, no one envisioned the widespread use of cellular phones, text messaging, or the internet. Since the ECPA was enacted in 1986, it has also been updated to reflect new developments in the realm of communication technology. North Carolina has adopted laws which closely mirror the Federal Act, codified at Article 16 of Chapter 15A of the General Statutes under “Electronic Surveillance.”
Both the ECPA and the North Carolina Electronic Surveillance Act (ESA) create civil and criminal penalties for anyone who intentionally intercepts, uses or discloses any wire or oral communication by using any electronic, mechanical, or other device. The statute defines “interception” as the “aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” The Act likewise bans unauthorized access to wire or electronic communication in storage, which is defined as “any temporary, immediate storage of a wire or electronic communication.”
So, when may I record a conversation with my spouse?
In North Carolina, telephone and oral communications may only be recorded if one of the parties to the communication is aware of and has consented to its being recorded. This means that you may record your own phone calls or conversations, but you may not record conversations between your spouse and a third party if neither knows the conversation is being taped. You may also not set up recording equipment your home or car to capture all conversations and activities taking place in those locations. At present, you may install video monitoring equipment, however the same may not have an audio component. Also, you should be aware that if you are recording a conversation with a party in another state, the state with the more stringent laws will apply. This means that if you are in North Carolina, which is a one-party consent state, and the person you intend to record is in California, which requires the consent of all parties to the conversation, the California law would govern.
May I record conversations with my children?
You may record conversations that you have with your children, because you are a participant in those communications. Ordinarily, federal and state privacy laws would prohibit any recordings between your children and a third party, without the consent of that party (your children are minors and therefore cannot consent to the recording). However, in certain limited circumstances, where you can demonstrate a good faith, reasonable belief that your spouse or another individual is having communications with your children which are contrary to their best interests, you may record such conversations. This is called the vicarious consent doctrine. As a parent, you are vicariously consenting to the recording on your child’s behalf. As this standard is not easily identified, however, is it always best to speak with an attorney prior to recording such conversations so as to avoid potentially violating the law.
I know my spouse’s passwords, may I access his or her e-mail or Facebook account to retrieve a document or to see what he or she has been doing since we separated?
Both the Federal and North Carolina Acts prohibit the intentional, unauthorized access of another person’s electronic storage. This would include e-mail and social media accounts, and any other accounts which require a password for entry. If your spouse gave you his or her password and authorized you to retrieve a document, you may do so. However, you may not exceed this authority to scope through all of the messages, hoping to find something juicy to use in your case. You may also not go into your spouse’s accounts merely because you knew or could ascertain the password. To do so would violate the law and potentially make any document you retrieve inadmissible in your divorce trial.
–Jennifer Bennett joined Hodges & Coxe PC as an associate attorney in 2010 and currently practices in the areas of general civil litigation and matrimonial law, focusing on divorce, child custody disputes, establishment and defense of child and spousal support obligations, equitable distribution and marital tort claims. You can reach her at (910) 772-1678
–Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation. Please contact him at (910) 772-1678.