Spouse cyberspying dangerous, possibly illegal

Surveillance software increasingly used on victims of domestic violence

Fowler adds that the company's surveillance tools can also help law enforcement as they are gaining acceptance by courts and probation officers requiring it on the PCs of some ex-cons if they're allowed access to a computer.

Though they appear to share the perspective that using surveillance software in business is acceptable with the proper legal notification to those being monitored, Southworth of NNEDV and Fowler are at odds on another point: Is one spouse spying on another legal?

"It's a violation of the Electronic Communications Privacy Act (ECPA)," says Southworth, alluding to the federal law. "It's eavesdropping."

"I wouldn't agree with a blanket statement like that," says Fowler. He adds no legal advice he's received indicates it's out-and-out illegal for a spouse to monitor a spouse without consent.

Mark Rasch, an expert in cyberlaw who's managing director of technology at Washington, D.C.-based FTI Consulting, notes that the ECPA in general does make it illegal to intercept someone else's communications and transmissions. However, he adds a broader look into the law reveals ambiguity and contradiction in the question of interspousal monitoring without knowledge or consent.

"If a husband does a forensic examination of a shared computer, and the computer automatically recorded this stuff, it's definitely a gray area. It's not clear," says Rasch. Adding a surveillance package like that from SpectorSoft to a PC to boost recording capability does clearly heighten the privacy concerns.

But "the spousal relationship" as a legal concept in common law suggests "that man and wife were a single entity," says Rasch, which complicates the picture, though that view appears to be declining in the nation's courts. The idea of a "marital home exception" held sway in a New Jersey case called Simpson vs. Simpson in 1991, which denied the wife the ability to keep taped telephone conversations out of a divorce suit. "But that's the minority view today," Rasch adds.

In the hodgepodge of communications-intercept law, Rasch notes, the federal ECPA law is not the only law that has to be considered. Every state has its own laws, with twelve considered to be so-called "all-party consent" states where it's necessary to obtain consent from all parties to monitor communications.

That means getting the consent of anyone communicating with the monitored spouse -- not something easy to accomplish in real life.

The all-party consent states are California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Nevada, New Hampshire, Pennsylvania, Vermont and Washington.

"If you're spying on your spouse, you need the consent of all the parties concerned in these states," he says, adding wryly, "The best place to spy on your spouse is New York."

The all-party consent laws raise the question of whether even parents can legally use surveillance software to monitor their own children.

In most states, children could be monitored by parents until 17 or 18, Rasch points out, but what about gaining the consent of all the individuals with whom the child communicates online? Most of these state laws, he emphasizes, sit quietly on the books and haven't been tested yet in court in real-world disputes.

The privacy question came up in a high-profile case brought by the U.S. Attorney General of the Southern District of California in 2005 against the maker of a spyware program called Loverspy.

Loverspy allowed subscribers to send electronic greeting cards to up to five different victims. When the electronic card was opened, Loverspy installed itself on the desktop and gave the purchaser the ability to remotely control the victim's computer.

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