Snooping on Spouses — How Far Can It Go?

It goes without saying that technology advances have made it easy for all of us to obtain information – especially information about other people.   As it can apply to the divorce context, *we* have written before about on how information from social media (e.g. Facebook evidence) has been used in Family Law proceedings.

From a broader standpoint, this begs the question of how far people can really go when assembling information against former spouses – usually to be used in court.  Matrimonial litigation can get ugly, and that even the most initially-conciliatory former spouses can find themselves drifting toward conduct that raises ethical questions, or can even border on the criminal.

In Canada, this kind of conduct has rarely reached the courts; however in a Minnesota case called State v. Hormann the husband – who suspected his wife of having an affair – was criminally charged with stalking after he downloaded spyware onto his wife’s computer and cellphone without her knowing.  He was also charged with illegally installing a secret tracking device on her car (which the wife discovered after having a mechanic check for it).   The laws of that state expressly prohibit the use or installation of tracking devices without a court order.  The husband spent a month in jail for the stalking conviction;  the second conviction in connection with the tracking device overturned on appeal because the husband happened to be co-owner of the vehicle, which meant that in a technical legal sense the device was not installed without “consent” of the owner.

The question of “virtual stalking” has also garnered attention:  usually it arises in connection with one spouse trying to gather emails, text or other computer information to uncover evidence of adultery by the other.  In fact, a recent article in The Atlantic catalogues the many digital tools that are now available to help suspicious spouses snoop on each other.

Needless to say, with the relentless advances in technology and social media, and with the prevalence of cellphone and computer use by individuals, this is a growing and permanent concern.  In an upcoming Blog, I will discuss some of the privacy laws that govern this kind of conduct in Ontario.

Do you have a question about the extent of virtual snooping that is allowed by law?  Do you suspect that your soon-to-be-former spouse is snooping on you?  Contact us for a free consultation.

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