How Wiretapping Can Screw Up Your Divorce Case

Written by: Megan Dell

People whose marriages are breaking down can act desperately to collect information about their spouse’s activities, but wiretapping can screw up your divorce case.

Generally, people have an expectation of privacy in their communications with others that is limited only in specific circumstances.

What is wiretapping? “Wiretapping” refers to using a device to monitor and/or record a conversation or to intercept electronic communication, including emails or text messages. Wiretapping is illegal because it deprives someone else of their privacy.

Intercepting or Accessing Electronic Messages is Wiretapping

There are federal and state laws prohibiting wiretapping. The Electronic Communication Privacy Act found at 18 U.S.C. Section 2701, et seq., the Computer Fraud and Abuse Act found at 18 U.S.C. Section 1030, et seq., and the Federal Wiretapping Act found at 18 U.S.C. Section 2510, et seq. are federal laws addressing wiretapping, and in South Carolina, the equivalent is the Interception of Wire, Electronic, or Oral Communications Act found at S.C. Code Ann. Section 17-30-10, et seq.

Both of these laws make it a crime to:

• Intercept (or attempt to intercept) new electronic messages
• Access (or attempt to access) stored electronic messages
• Disclose (or attempt to disclose) the contents of any messages obtained in violation of the law
• Use (or attempt to use) the contents of any messages obtained in violation of the law
• Use (or attempt to use) any device that causes a different telephone number to be displayed than the one associated with the originating device, absent limited exceptions
• Arrange for anyone else to violate the law on your behalf

In 2010, the South Carolina Court of Appeals interpreted these laws in a case that arose out of a divorce in Jennings v. Jennings, 389 S.C. 190 (Ct. App. 2010). In that case, the wife suspected her husband was having an affair, and she enlisted a family member who had previously worked for the husband to access his email account and obtain copies of messages between him and his girlfriend. The Court of Appeals found that provisions of the Stored Communications Act applied to the family member’s conduct.

Since then, multiple courts have held that even if someone had permission to access materials at one time, if the circumstances change — such as an employee resigning from employment, or two spouses separate — then it may be illegal for that person to continue to access messages. It is possible to legally access messages one day and illegally access them the next day!

Recording Conversations without Permission is Wiretapping

A person engaging in oral communication can expect that what they say will be private between the participants in the conversation.

As such, there are limitations on when a conversation can be recorded. South Carolina is considered a “single-party consent” state, which means that as long as one party to a conversation consents to recording of a conversation, the other participants do not need to provide permission or be given notice that the conversation is being recorded.

Criminal and Civil Penalties for Wiretapping

Violation of S.C. Code Ann. Section 17-30-10, et seq. is a felony and can result in imprisonment for up to 5 years, a fine ranging from $500 to $5,000, or both.  Violation of the federal laws related to wiretapping can also result in imprisonment for up to 5 years and a fine.

In case the criminal penalties do not deter you, you can also be sued civilly for violating either the federal or state laws prohibiting wiretapping.

Illegally Obtained Evidence Cannot Be Used in Your Divorce Case

But what if you have already done one of these things, and you have information that can help your case, such as proof your spouse is committing adultery?

These laws prohibit use of such proof so it won’t be admitted as evidence or considered by the Family Court judge.

Additionally, if you provide such evidence to your lawyer, and they attempt to use the evidence, then they can be penalized too. This is one other way that wiretapping can screw up your divorce case.

What Should You Do Instead of Wiretapping?

While it may seem like a good idea to access your spouse’s emails or texts, or to record their conversations without permission, wiretapping can screw up your divorce case in unanticipated ways. That’s why it is important to hire a divorce lawyer who is well-versed on electronic storage and can help you obtain electronic materials in ways that are legal and result in evidence you can actually use in your Family Court case.

The attorneys of Dell Family Law are familiar with electronic evidence and can help guide you through obtaining proof of your claims in legal ways. Schedule an initial consultation to learn more.