Divorce Spyware in Tennessee Laws

Divorce Spyware is More Common Than Most Think

Divorce Spyware in Tennessee Divorces Can Be Illegal

If you’re going through a Tennessee divorce, it’s just your plain old human nature urging you to dig around for information that could help your case. This could lead you, however, into big trouble if the methods you use to get that information break the law, whether or not you are aware of the law. One such way is “spyware.”

What’s “spyware?”

Spyware is a device or a program that allows the recording and replaying of whatever is typed on a computer, whether email, documents, Web addresses, and so on. Spyware allows others to read these communications in “real time” by having them transmitted over the Internet, or just stored for later reading.

What forms does spyware come in?

Spyware hardware is one type. This includes “keystroke loggers,” or “keyloggers,” that connect between the keyboard and the computer. A typical hardware keylogger looks like a little cylinder that gets hooked up between keyboard and computer, and they are usually easy to use (and also to spot, by the way). It’s a small storage device that records all the keystrokes that go through it. Whoever put it there can retrieve it and download it to another computer to “read” all that was typed on the keyboard, including word processing documents, emails, financial spreadsheets, bank account information, Web addresses, and so on. The person can then reinstall the keylogger and keep on recording.

Spyware can also come in a software format. A person could send you an email with a spyware program attached to it that buries itself in on your hard drive after you open it (think of “Click Here for More Information on this Offer!”). The program can then send all types of information to whomever sent you the email, including your documents, emails, Web sites visited, and so on. There is no need for the sender to retrieve a piece of hardware because the program automatically sends it along over the Internet.

Is spyware illegal?

It depends on how it is used.  A company using spyware to steal secrets from a competitor can end up in big legal trouble, but a parent could legally use spyware to keep tabs on what Web sites children are visiting. It can also be legally used by companies that want to know what their employees are doing on their computers.

When it comes to spying on a spouse, however, the rule of thumb is Don’t do it.  Attorneys all over the country have had cases that involve information and evidence someone has obtained through spyware, and those lawyers will tell you the legality of this activity can get real cloudy very fast. All kinds of federal and state laws can conflict with each other and confuse courts faced with evidence gained through spyware. Some courts have ruled that if some spyware didn’t transmit information from one state to another, federal interstate commerce do not apply, but on the state level, Tennessee could have a law that reads one way, Arizona another way, and so on.

When it comes to one using spyware in a divorce case, perhaps its use might not be deemed specifically illegal, but that’s not to say laws against stalking, fraud, harassment, computer hacking, and others couldn’t come into play. Laws in this matter can be confusing, and different courts’ decisions have been contradictory. In addition, there’s a definite lack of legal precedent in cases involving new electronic technology, a field we all know is expanding just about daily.

If information contained on a computer ever becomes critical to a case, an experienced divorce attorney can help you get a court order to legally make a copy of all the contents of a computer. This, however, can run into big bucks; companies that specialize in this charge thousands to do so.

What if my computer is used by several members of the family?

If a computer is used by more than one person regularly, then it’s safe to assume the “unprotected” information on it, such as Web sites visited and saved documents, are not protected by privacy laws, but this is just for those who customarily use it.

Beware here. Privacy laws protect items on the computer that are password protected; word processing software allows a document’s creator to password protect it and therefore have a reasonable expectation of keeping it private. If someone is not specifically given a password to a document but “guesses” it, the courts could consider that an invasion of privacy.

Same goes with email; unless someone specifically gives you a password to an email account, that person’s emails are considered protected communication, and someone who guesses at or stumbles upon or “hacks” that person’s password cannot legally make any use of the emails and could also be guilty of a felony.

The takehome is this: beware of using spyware. Any information you get, no matter how you get it, from a computer that is not your own or one you don’t regularly use will most likely be inadmissible in court, and it could get you in a great deal of trouble. If you ever use a keystroke logger to record and intercept your spouse’s communications that are password protected, even on a computer you share, the courts will assume you did so without the consent of the spouse. Why wouldn’t he or she simply have given you the passwords necessary if he or she wanted to share information, communications, and so on? That will be a tough question to answer, and it will be a court of law asking it.

If you bring information, evidence, or printouts of this bank transaction or that email to your lawyer that you obtained through spyware, get ready to hear some bad news: instead of helping your case, you could have hurt it. Your lawyer will strongly advise you to do nothing at all with the information, and if you persist in collecting information this way, your lawyer could be legally obliged to report the matter to the courts, client-lawyer privilege notwithstanding.

Dig into the whole subject of spyware and you’ll learn that one source swears it’s legal while another source tells you to beware. That in itself ought to be a big warning sign about the doubts surrounding spyware.

Memorize these important reasons to never electronically eavesdrop in any form:

It could be a felony.

Even if the court finds you didn’t break any law, any evidence you got through electronic eavesdropping could be inadmissible because of the way you got it.

Third, some courts frown so much on snooping that they consider it worse than whatever the “snooper” was trying to uncover. The courtroom scales just might  and could “tip” matters to the benefit of your spouse.

If a computer contains information that’s critical to your case, there are legal ways of obtaining it, and there are illegal ways that could end you up in jail.

Contact an attorney before doing any such snooping; this could save you from a tremendous amount of legal grief. A knowledgeable divorce attorney will help you preserve your rights and steer you away from needless complications. Your attorney will be a great source of information on whether you could benefit from the services of a private investigator, forensic computer expert, and so on. Having one work under the supervision of your attorney will afford you some protection from being charged with snooping crimes.

For more information, go to:

• Electronic Spying in Tennessee Divorce Laws
• Recording Telephone Calls and Wiretapping In Tennessee Divorce Law
• Surreptitious Digital Audio & Video Recording—Electronic Eavesdropping
• Hacking Computers, E-mail Accounts and Phones — A Big TN Divorce No-No
• GPS Devices For Spying in Tennessee Divorces
• Tennessee’s Federal Divorce Spyware Case – Jail Time & Heavy Fines
• Tape Recording Conversations Law & Reading E-mail in Divorce
• Electronic Surveillance Spying & Snooping May Be Illegal in TN Divorce
• Divorce and the ECPA