Federal Laws on Divorce and Spousal Spying, ECPA

Divorce & Electronic Communications Privacy Act, EPCA, federal law, hacking e-mail, spyware, wiretapping, digital recording, taping calls & conversations.


Hi.  I’m Miles Mason. I’m a divorce attorney and the founder of the Miles Mason Family Law Group. We represent clients in the greater Memphis, Collierville, and Germantown, Tennessee areas.

This talk is about divorce and the Electronic Communications Privacy Act.

I am going to explain why recording your spouse’s private conversations – without permission – could create serious problems.  Spying on your spouse can adversely affect your divorce and cause avoidable complications.

The first question is “Why would  someone feel compelled to spy on their spouse?”

Adultery. Often one spouse suspects the other of cheating.  But there may be other suspicions of wrongdoing.  Excessive gambling or illegal drug use, for example. Eventually the focus shifts to proving marital fault to obtain the divorce. Proving the case in court requires evidence.  To substantiate the alleged grounds for divorce in the complaint, many people will snoop, spy, eavesdrop, engage in surveillance, or record their spouse’s private conversations with other people.

That a big mistake.  At best, it’s a misguided attempt to gather evidence for the divorce. At worst, it’s a federal crime.

Here’s the typical rationale for spying:

I can record my spouse’s private phone calls and catch him or her in the act.  The recording will prove he or she is a dirty rotten scoundrel.

It’s very tempting isn’t it?

Just tape cheating phone calls to the paramour.  Just print some of those emails between your spouse and the boyfriend or girlfriend. That’s concrete evidence of adultery. In Tennessee law, adultery is grounds for divorce.  A slam dunk, right? Wrong!

Recording your spouse’s private conversations can violate the Electronic Communications Privacy Act. The ECPA.

That’s federal law.  Violating the ECPA can result in substantial criminal penalties, injunctions, and civil damages.  The difficulties you may experience in the divorce?

They will pale compared to the problems you’ll encounter if prosecuted or sued for wiretapping and electronic surveillance.

What is the ECPA?

When you talk to a lawyer about recording your spouse’s private telephone conversations, or if you suspect you’re the one being spied on, the discussion should turn to the ECPA. The ECPA, as amended, and its predecessor the Stored Wire and Electronic Communications Act, are federal laws prohibiting electronic spying in certain circumstances. Even between spouses.

An illegally recorded phone call between your spouse and someone else can be held inadmissible in court.

Here’s the basic rule: Use of illegally obtained communications as evidence in Tennessee court is prohibited if disclosure of that information would violate the ECPA.  See 18 USC Sec. 2515.  In other words, the recording of a private communication – the meeting, the phone call, the email, the voicemail – without consent could be excluded as admissible evidence in the divorce.  Sure, there are always a few exceptions, and that’s why you need to discuss this with your lawyer.

So what acts are illegal under the ECPA?

These are the 4 main points you need to understand about the scope of the ECPA:

  1. The intentional, unauthorized use or attempted use of a mechanical or other device to intercept, use, or disclose your spouse’s wire, electronic, or oral communication violates the ECPA. For example, using your recorder to tape your spouse’s telephone call or face-to-face meeting, when you have no authorization to do so.
  2. The intentional, unauthorized access of your spouse’s stored wire or electronic communication violates the ECPA. For example, accessing your spouse’s private email account without authorization.
  3. For there to be an ECPA violation, your spouse must have a justifiable expectation of privacy in the electronic communication. For example, when your spouse posts an unrestricted Facebook message, there is no justifiable expectation of privacy.  But an email message to (or from) a private account would raise a justifiable expectation of privacy.
  4. For there to be an ECPA violation, the interception or access must be unauthorized or conducted without your spouse’s consent. The scope of that consent is important.  For example, if your spouse gave you the username and password to his or her private Amazon account so you can stream movies, nothing else, then consent is limited to that use.  You may not have consent to access the Amazon account manager or review your spouse’s past and present purchases to see if there were gifts to a secret lover.

Only electronic communications fall under the ECPA.

What then, is an electronic communication? Just about any old or new technology is covered:

  • Face-to-face conversations that have been intercepted by mechanical device (including a drone).
  • Landline telephone calls.
  • Voice over internet protocol, or VoIP.
  • Voice mail, or Vmail.
  • Pager messages.
  • Web-streaming video posted to a private account, such as Match.com.

The last question to answer is “What are the consequences of violating the ECPA?”

The consequences of illegally surveilling your spouse can be quite severe.

There is the possibility of:

  • Actual damages.
  • Statutory damages.
  • Punitive damages.
  • Reasonable attorney’s fees awarded to your spouse, plus litigation costs reasonably incurred.
  • Injunctive relief, which is a stop order.
  • And imprisonment if convicted of certain violations.

I strongly recommend staying away from recording your spouse’s communications, unless you are seeking to protect a child’s safety, and then, only after you’ve consulted your attorney.   There may be other exceptions, depending on the circumstances, but the reasons must be genuine, sincere, and require a high level of need.

I’m Miles Mason from the Miles Mason Family Law Group.  Thanks for joining me.

References, resources and more:


Copyright © 2023 Miles Mason Family Law Group, PLC   - Disclaimer