Sleuthing Blunders: Privacy Law Implications in Virginia Divorce and Custody Cases
A contested divorce or custody battle is one of the most stressful and emotional times in a person’s life. If you suspect a cheating spouse or are concerned for the welfare of your children, you may go to any length to gather evidence to prove your suspicions. You may be tempted to break into your spouse’s emails or social media accounts, record their communications, or use surveillance to track their movements. However, it is best to seek legal advice and proceed with caution so that you do not unwittingly break the law, and expose yourself to criminal and financial consequences. Furthermore, evidence you obtain unlawfully may be excluded as evidence—making its gathering not worth the risk in many cases.
Intercepting Your Spouse’s Emails and Conversations
The Interception of Wire, Electronic or Oral Communications Act, found in Virginia Code § 19.2-61 through § 19.2-70.3, governs the legality of intercepting or disclosing wire, electronic or oral communications in Virginia. § 19.2-62 makes it illegal in Virginia to intercept “any wire, electronic or oral communication.” This would, for example, prohibit intercepting your spouse’s emails or recording their telephone calls. However, § 19.2-62 goes on to say that:
It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
This means that Virginia is what is referred to as a “one party consent state.” You may record a conversation that you are having with your spouse, but you may not record your spouse’s communication with another person without the prior consent of your spouse or the other person.
In addition to penalties under state law, recording your spouse’s conversations may also subject you to you to federal prosecution under the Electronic Communications Privacy Act (ECPA). Found at 18 U.S.C. § 2510 through § 2522, this is the federal counterpart to Virginia’s Interception of Wire, Electronic or Oral Communications Act. The ECPA protects wire, oral, and electronic communications while they are being created, are stored on computers, or are in transit. This will apply to emails, electronic data stored, and telephone conversations.
As the law evolves in this area, two key factors to consider when evaluating whether or not material can be obtained are (1) the expectation of privacy and (2) consent. In evaluating those two factors, one can ask: is the information stored on a computer open to family use? Was the information password-protected? Was the password provided to you or did you use spyware to obtain it?
To be safe, be sure to consult with an experienced family law attorney before intercepting emails, messages or conversations to use in your divorce or custody case.
Using GPS to Track Your Spouse
Virginia Code § 18.2-60.5 makes it illegal in Virginia to use an electronic tracking device against a person without that person’s consent. This would prohibit, for example, installing a GPS device on your spouse’s vehicle and then tracking their location using that device. § 19.2-62 does go on to list certain circumstances where electronic tracking devices may be used without a person’s consent, including by law enforcement, registered private investigators, and by parents tracking the location of their minor children. But in all other circumstances the use of such devices to track your spouse’s movements without their consent would be illegal in Virginia.
Videotaping Your Spouse
Virginia Code § 18.2-386.1 makes it illegal in Virginia to videotape, photograph or film without their consent a person who is totally nude, clad in undergarments or in a state of undress, so as to expose that person’s private parts, where the circumstances are such that the person would have a reasonable expectation of privacy. However, videotaping a person without their consent may also be prohibited under Virginia’s Interception of Wire, Electronic or Oral Communications Act or the federal Electronic Communications Privacy Act. Both those acts are broader in scope than §18.2-386.1, as discussed above.
In addition to possibly violating state and/or federal law, videotaping someone without their consent may also subject you to a civil tort claim. That could result in you having to pay damages to the person videotaped. All of which combines to make videotaping a person in Virginia without their consent a very tricky proposition, to say the least.
Using Illegally Acquired Evidence
If you have illegally obtained emails, recordings or information, you may not use it for any purpose. You may not disclose the information to another person, or use it in your divorce or custody case. State and federal criminal penalties for dissemination of illegally obtained information can be severe.
Prior to engaging in any detective work for your divorce or custody case, it is important to seek the advice of an experienced family law attorney. A good attorney can help you make your best case while staying on the right side of the law. From offices in Fairfax, Leesburg, Manassas and Fredericksburg, the family law attorneys at Livesay & Myers, P.C. represent clients across Northern Virginia. Contact us to schedule a consultation today.