What You Need to Know About Spyware and Hacking in Massachusetts Divorces

During consults with new clients one of the most frequent questions we hear is what can I do to prepare myself for a divorce? There is a lot you can do but one of the most important, but most overlooked, thing you can do is secure your personal information.

You should immediately change your email and bank account passwords as well as the passwords on your cell phone, laptop, tablet and other digital devices. While you are doing this you should also remove the notification previews for incoming messages on your electronic devices and make sure that you and your spouse or children are not sharing an iCloud account.

It is also common for a person to come into our office and tell us that they think their spouse is spying on them. There is an entire market of devices that you can use to track your spouse or spy on them. Many of us have our houses wired with smart devices that can be used for just that purpose.

People in divorce may believe that resorting to spying on their spouse is a case of “the ends justifies the means.” For example, someone might be trying to gather evidence of dishonesty, reckless spending or bad parenting.

If you are worried your spouse is spying on you in your divorce the first question you need to ask is does your spouse have access to shared devices. Massachusetts law states that for computer hacking to take place, the person spying can’t have access to the device. This could be a lot less specific than giving someone a password for your computer. Many devices spouses use have shared access or there is some way a spouse can access the information without using a covert hacking or spying method. For example in the 2001 case White vs. White, a wife was able to access her husband’s private emails through a shared folder on the desktop. Thus the husband was viewed as having tacitly granted access as the wife was able to access it through a common interface.

The fact that so many of our devices are connected using GPS (such as connectivity between cars, home security systems etc. and cellphones) makes it more difficult than ever for people living together to maintain privacy. Family plans for cell phones or backup systems may be ways of gathering data. Even innocent devices like baby monitors can record evidence. It can be difficult to argue that these shared devices were used nefariously or are in invasion of someone’s privacy.

It is illegal to secretly record your spouse according to Massachusetts wiretapping laws. Massachusetts is a “two-party consent” state, meaning you cannot record audio of someone without their consent. However, if you provide notice that you are recording, and the person continues speaking, consent can be assumed. A video only recording is treated somewhat differently, but this also should not be done secretly.

If you are concerned your spouse is spying on you, you should take action to secure all passwords and be vigilant about what you say if you own a home security system, baby monitor, Nest, or computer that has software to monitor your child’s browsing. You should be mindful of all the digital accounts you may share, and devices that are connected to your cell phone, like your car. Assume anything shared publicly on social media could be used against you.

If you are looking for evidence of a spouse’s bad behavior it’s best to let your attorney handle discovery. If you have gathered evidence against your spouse you should immediately disclose any evidence you gathered and how you have gathered it. A responsible and skilled Massachusetts divorce attorney will guide you through a comprehensive and ethical process of discovery and inform you of admissible evidence and whether it will help your case. It’s important to remember that even if evidence against your spouse isn’t strictly illegal, snooping on your spouse may be viewed as a sign of bad character which could have the opposite of the desired results in your divorce case.

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