Why It’s a Bad Idea to Snoop Through Your Spouse’s Electronic Devices During the Pendency of a Divorce
Technology allows us to store everything in one place. Communications, important documents, phone call logs, and location data are now all stored on one electronic device. During the pendency of a divorce, it is alluring to snoop through your spouse’s cell phone, tablet, or computer. Often people want to know if their spouse is cheating or engaging in other nefarious conduct (like gambling, drugs, or alcohol). These devices also often hold communications or important documents that could be highly relevant to your dispute. Intercepting this information could seemingly give you a leg up in a contested litigation.
But this temptation should be resisted. New York and federal law has recognized multiple severe sanctions and penalties for the surreptitious retrieval of information from a spouse’s electronic devices.
First, a court may impose monetary sanctions and direct you to pay counsel fees if you are caught spying on your spouse’s electronic communications. For example, in Strauss v. Strauss, a husband was sanctioned and ordered to pay his spouse’s counsel fees when he “obtained access to [her] iPad and private text messages, falsely told her that he did not have the iPad and that it was lost, and provided the text messages to his counsel, who admittedly failed to disclose to opposing counsel or the court the fact that [he] was in possession of the iPad and text messages, until two years later when they disclosed that they intended to use the text messages at trial.” Strauss v. Strauss, 171 A.D.3d 596, 597 (1st Dep’t 2019). The court found this to be egregious conduct and directed the husband to pay hundreds of thousands of dollars in counsel fees and sanctions.
Second, courts have discretion to dismiss a case for the unauthorized use of the other party’s electronic devices or communications. This is particularly true when one party intercepts the other party’s privileged communications with his or her attorney. For example, in Shawe v. Elting, 169 A.D.3d 601, 602 (1st Dep't 2019), the appellate court dismissed an action when the plaintiff had, among other things, improperly accessed defendant's privileged attorney/client communications. The appellate court found that "Plaintiff’s improper and willful access of defendant's privileged communications . . . supports dismissal of his claims in this action." Id.; see also Lipin v. Bender, 84 N.Y.2d 562, 571 (1994).
Third, a court may suppress any evidence obtained through improper means, including the surreptitious review of information on your spouse’s cell phone or computer. See In re Beiny, 129 A.D.2d 126, 127 (1st Dep't 1987) (affirming the suppression of the documents upon a finding that they were obtained through improper means).
Fourth, in extenuating circumstances, a party can even be charged with state or federal crimes for unauthorized access to a spouse’s electronic devices and accounts. Pursuant to the federal Electronic Communications Privacy Act, it is illegal to intentionally access another’s email or social media messages without authorization to do so. Similarly, the Computer Fraud and Abuse Act prohibits the installation of spyware on someone else’s phone. The federal wiring taping statute, and New York’s eavesdropping statute, proscribe recording conversations when the person making the recording is not a participant in the conversation.
Recently, New York’s Standing Matrimonial Practice Advisory & Rules Committee (“Committee”) has also recommended that the state legislature pass an additional statute that expressly prohibits a party from accessing the other party’s electronic devices during the pendency of a divorce. Specifically, in its 2021 report to the legislature, the Committee recommended that the following be added to New York’s “Automatic Orders”: “Neither party shall make use of an electronic device in the ownership, use, possession, or custody and control of the other party, including without limitation a tablet, computer, laptop, personal digital assistant, or smartphone, to obtain information about the other party without their knowledge and consent.”
The Automatic Orders go into effect as a court order at the commencement of a matrimonial case. Hence, if this amendment were enacted into law, a party snooping through the other spouse’s the electronic devices during a divorce would violate a court order, could be charged with contempt of court, and could be sent to jail.
Simply stated, there are many repercussions for the unauthorized access to a spouse’s electronic devices during a divorce or domestic relations dispute. The best course of action is to simply not to access your spouse's electronic devices or accounts without their knowledge and express permission. For more information, please contact The Law Offices of Andrew T. Coyle either by phone (315-201-8249), or email ([email protected]).