Recording Telephone Calls and Wiretapping In Tennessee Divorce Law


Recording Telephone Calls and Wiretapping In Tennessee Divorce Law

Recording Telephone Calls and Wiretapping In Tennessee Divorce Law
Recording Telephone Calls and Wiretapping In Tennessee Divorce Law

Are you thinking about getting a divorce or are already into divorce proceedings? Do you think that if you could only present the judge with some incriminating evidence of your spouse’s bad behavior you might get a better settlement, or custody, or more child support? Are you thinking of “electronic eavesdropping,” reading emails or recording conversations? If so, read on. You could not only be breaking the law but also making your standing in court a lot weaker.

The federal Electronic Communications Privacy Act (ECPA) Act of 1986 made unauthorized access to and interception of the private communications of others illegal, and today this can include listening to, recording, or reading communications from traditional telephone wiretaps whether on “landline” or cordless phones, email, voicemail, pagers, chat logs, and video, even if the other person is your spouse.

If you can imagine any other way of “electronic” eavesdropping or recording, just assume it’s also on the list. For instance, “guessing” your spouse’s email password and reading messages there could be ruled an invasion of privacy. Nowadays, certain Smartphones can transfer information to another Smartphone just by “bumping” them together; if you obtain any of a spouse’s (or anybody else’s) information that way without authorization, you could find yourself charged with a felony.

The whole idea behind laws about electronic “snooping” is that people have a right to privacy when it comes to their communications—phone calls, emails, etc.—unless they have made the communication public on purpose, say, by posting it on an electronic bulletin board. What’s illegal is the unauthorized interception, disclosure, or use of such communications.

Let’s say you and your spouse use the same email account and share one password. That’s an exception to the rule about private communication because your reading emails there would not be unauthorized. You don’t even have to have gotten explicit permission from a spouse to do this; the fact that the two of you were accustomed to doing this can be deemed sufficient evidence that your reading the other’s emails was not unauthorized.

If your spouse has a separate email account and happens to give you a password for a specific purpose, say, retrieving someone’s email address, but you take advantage of the situation to browse through saved or sent messages, that could put you in violation of the law. On the other hand, if someone sends you an email by mistake (haven’t we all done that?), it’s fair game to read it and use it.

But what about when it comes to children? Some spouses have recorded their children’s conversations with their spouses. Does this require the child’s consent? Some courts have ruled that parents can record their children’s telephone conversations; the courts’ thinking is that children are entitled to privacy in their communications but that this right is overridden by the parents’ interest in protecting their children, who might not be old enough to make the best decisions for themselves. If such taping is for the welfare of the child, the thinking goes, the parents can record their conversations. The parent making the recording “waives” for the child his or her rights to privacy in favor of the parent’s right to look out for the welfare of the child, who might be too young to give “informed consent” to being recorded.

A problem arises when the parent doing the recording is not really acting in the best interests of the child but in his or her own interests, trying to get information that will help a divorce, custody, or child support case. One legal scholar suggested that because the Federal Wiretapping Act was aimed at combatting organized crime, it did not address any sort of electronic surveillance that could go on involving children of divorcing parents arguing over child support or custody, which are matters for state courts rather than the federal government. As a result, certain federal and state courts, circuit courts, and appeals courts have ruled both ways on this issue, some saying that a parent has a right to record children’s conversations to ensure their welfare, while others ruling that if the parent’s real intent is gaining an edge in a divorce, child care, or custody matter, that’s breaking the law. This brings into consideration the “intent” of the parent doing the recording, a hard thing to prove or disprove and therefore a big potential legal problem.

On top of that, some courts have ruled there’s no difference between just listening on an extension phone to a conversation between the other parent and a child and actually recording phone conversations. Other courts have made a sharp distinction between these two behaviors.

Hang on for more complexity. Some courts have ruled that “interspousal” conversations, those between husband and wife, even if they are divorcing, are not protected conversations, so one can record the other without the other’s permission. But other courts in other parts of the country have ruled that such “interspousal” conversations are fully protected by privacy law, so the one making the recording without consent could be breaking the law.

The takehome here is that the law is unsettled and can vary from area to area and state to state. As well, a court ruling could be handed down today in California or Maine or wherever that could have a big impact on future court rulings.

In Tennessee, electronic surveillance, spying, and snooping can certainly have legal consequences. Under the Tennessee Wiretapping and Electronic Surveillance Act, it is a Class D felony to intentionally intercept or access unauthorized communications, and this includes getting someone else to do it for you. If you violate this law, you could be fined $100 a day for each day of violation or $10,000, whichever is greater.  The court could additionally grant punitive damages and attorney’s fees. In Tennessee, you can record a conversation with another person without that person’s knowledge or consent, because Tennessee is a “one party” state in this matter. Other states, however, are “two-party” or “all-party” states, meaning that all parties have to know that a conversation is being recorded. Calling from Tennessee and recording a conversation with someone who happens to live in a two-party state could get you into serious legal trouble.

If you ever violate this law, your troubles might not stop there. Your spouse could independently sue you for invasion of privacy, and a judgment against you could come right out of your specific share of any divorce settlement.

Some people in the thick of a divorce think they’ll improve their chances of getting a better divorce settlement or alimony if they can just offer evidence that a spouse was misbehaving and lying about it, so they start electronic “spying”; recording phone conversations, reading emails, videotaping a spouse, and so on. The truth is that this could really backfire on them.

Keep in mind these reasons to not eavesdrop electronically:

First, you could find yourself charged with a felony.

Second, even if you didn’t break any eavesdropping law, the court could toss any evidence you present that you got through such eavesdropping.

Third, some judges look at electronic snooping as worse behavior than that which such snooping uncovered. Your credibility in the courtroom could take a real hit, and the “advantage” could go to the other side.

Talk with a lawyer before you consider electronic snooping; such a move could save you from doing something you might regret for a long time. An experienced divorce lawyer can keep you from such pitfalls and preserve your rights by steering you toward an experienced private investigator. If you hire one by yourself who breaks any “snooping” laws, this could spell as much trouble as if you had done the snooping yourself. You definitely want an investigator working under your lawyer’s supervision and direction.

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Memphis divorce lawyer, Miles Mason, Sr. practices family law exclusively and is the founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including divorce, alimony, alimony modification, child support, and child support modification.  He is the author of The Tennessee Divorce Client’s Handbook: What Every Divorcing Spouse Needs to Know. Contact an attorney today at (901) 683-1850.

Miles Mason

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Memphis divorce and family lawyer, Miles Mason, Sr. is the founder of Miles Mason Family Law Group, PLC. For more information about our professional staff, see our Meet the Team page.

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