The world of James Bond gadgetry is on a collision course with the world of divorce. It is happening faster than any divorce attorneys could possibly have anticipated and is catching many ill-prepared to deal with clients who are more well “armed” than Mr. Bond or Jason Bourne.
The spy shop has become the new first stop for many preparing for what they believe will be nasty divorce and custody litigation. Much of this shopping, unfortunately, takes place before meeting with divorce or matrimonial attorneys, who may be able to dissuade the use of some of these gadgets for spying or other questionable, if not illegal, conduct. Often, clients are failing to avail themselves of real professionals in the art of surveillance, who may be able to provide more effective evidence because of their experience in dealing with these situations.
In a society where “smart” cellphones can do remarkable tricks compared to their “dumb” ancestors of only two or three years ago, perhaps attorneys should be doing all they can to better educate themselves of what’s out there and whether or not it’s legal to use evidence gained from such technology.
Here is a brief overview of what types of gadgets are readily available and what some courts around the country are saying about the use of these gadgets in divorce and custody proceedings:
Easily available and for costs that were completely not thought of just a year or two ago are items such as cellphone trackers, GPS devices small enough to be hidden in vehicles and small hidden cameras that can be placed into items such as children’s toys or worn attached to eyeglasses.
There are also microphones that can record for days and can be sewn into clothing. Firms like SpyTechInc.com, located in New York City, provide a dizzying array of low-priced gadgets as part of their online catalog. A glance at their website reveals items such as an alarm clock with a built-in motion-activated hidden camera that will provide more than 40 hours of high-quality video for just more than $200. Then there is a $100 spy watch that takes high-definition video with its built-in night-vision camera. There are also items known as cellphone “recons,” which, for less than $200, can monitor any Android phone, Blackberry and even the most recent iPhone to record all text messages sent and received, all emails sent and received and log all incoming and outgoing calls.
For $100, you can get a pen that will record all audio within a 30-foot radius, works on voice activation and has a long battery life. The list goes on and on and the technology is truly mind-blowing.
The law in all states, including Pennsylvania, is fairly unsettled and will need to be rapidly developed. State and federal courts are beginning to weigh in. In a recent Minnesota case, State v. Hormann, 805 N.W. 2d 883 (Minn Ct. App 2011), a husband believed his wife was having an affair. He became obsessed with trying to catch her. He installed spying software on her cellphone and the family computer, and installed a GPS tracking device on her car.
The wife thought it was odd that her husband seemed to always know exactly where she had been. On one occasion, he showed up at a lakeside cabin that he previously had no knowledge of and attacked her acquaintance. The wife eventually took the car to be repaired and the repairman found the hidden GPS device and removed it.
The husband was convicted of stalking his wife and found in violation of a Minnesota statute that bars surreptitious electronic monitoring of another individual with a tracking device. The appeals court upheld the stalking conviction but tossed out the additional conviction based upon the fact that the husband also owned the car the wife was using and, therefore, the court found he had a legal right to place the tracking device on the car.
A Gloucester County, N.J., Superior Court judge came to the same conclusion in Villanova v. Innovative Investigations, 21 A.3d 650 (NJ Super A.D. 2011), but for different reasoning, and was upheld by the appellate division. In that case, a New Jersey wife believed her husband was having an affair and placed a GPS tracking device in her husband’s car, which they jointly owned. The husband sued his wife for invasion of privacy. The judge in that case said the wife did not violate the husband’s privacy. The New Jersey appellate court stated that the GPS device did nothing that a private investigator would not have been able to accomplish by just normal surveillance of the husband and, therefore, the husband had no right to an expectation of privacy under those circumstances.
However, in a 2011 Nebraska case, Lewton v. Divingnzzo, 772 F.Supp 2d 1046 (D. Neb 2011), a mother who placed a listening device in her daughter’s teddy bear, which the child was instructed to bring to all custody visits with her father, was found guilty of violation of the Federal Wiretap Act.
In fact, five of the 13 U.S. circuit courts have found that the Federal Wiretap Act prohibits electronic surveillance of any type within a marriage by the other spouse. So far, two have found that the law does not prohibit spying on your spouse. The others have yet to weigh in.
As indicated earlier, the current state of the law in Pennsylvania is not completely developed. The Pennsylvania Wiretap Act applies to email and text communications. Specifically, Section 5703 indicates that it is illegal to intercept any electronic or oral communications. Use of the contents of what was intercepted is also illegal. But if these emails, text messages or other social media interactions are stored on a computer or other electronic storage device and then retrieved, possibly through questionable means, they may still be admitted into evidence.
In 2012, Pennsylvania amended the discovery rules to deal with electronically stored information, without codifying any existing case law from other jurisdictions that would ban electronically stored evidence that was gained by illegal means. Although PA. R.C. P 4011, which has stood for the proposition that no discovery would be allowed that was sought in bad faith or would cause unreasonable annoyance, embarrassment, oppression, burden or expenses or is beyond what is permitted by other discovery rules, or would lead to disclosure of mediation communications or documents, it does not extend any additional protections regarding electronically stored data that would otherwise be admissible. The explanatory comment makes it clear there was no intention to include any of the federal jurisprudence that deals with electronically stored data or documents.
Many of the companies who sell key-logging software, cellphone trackers and stealthy GPS devices advise that sales are soaring. Research indicates that in 2011, sales of these devices were up almost 80 percent from the previous year. A February 2012 report from the American Academy of Matrimonial Lawyers indicated that 92 percent of their members had reported an increase in evidence from text messages, emails, call histories and GPS location information.
Clearly, technology is now changing the landscape of the many divorce and custody actions in Pennsylvania, New Jersey and nationwide. Where parties once spent thousands of dollars on surveillance of the type often provided by private investigation firms, many are now choosing cheaper and more easily available technology of the type described in this article. Divorce and matrimonial attorneys must be prepared to answer questions about the legality of the use of this new technology to the extent they are currently able and ensure their clients understand that the evidence it produces may or may not be useable in their divorce or custody action. •
Christian V. Badali is a partner with Weber Gallagher Simpson Stapleton Fires & Newby.