Will Cell Phone Spyware Help You In Family Court?

Wanna catch your spouse doing something they aren’t supposed to? Concerned what is being said about you behind your back by the other parent? The kids are up to something and you just can’t seem to catch them?

A new wave of spyware that lets you snoop on other people’s cell phones seems to becoming more and more popular. You may be tempted, but are they legal and what can you do with the information once you get it?

Stealthgenie.com (out of business); mobistealth.com; mspy.com – are just a few of the many cell phone tracking apps that can be downloaded on a mobile phone or tablet in about ten minutes. These app’s are undetectable to the cell phone user and they can monitor much of the communications on the phone.

Installing this kind of spyware allows the person who placed the app on the cell phone to read texts simultaneously as the user, obtain phone numbers of outgoing and incoming calls, track the duration of calls, read emails, read chats, GPS track where the phone is, and be an open listening device.

The Law

Technology is evolving so quickly that most of us have a hard time staying up with it all. It’s no secret that the law always lags behind new technology and these spyware app’s are no different. While I have not seen any  legislation specific to these apps, that doesn’t mean they are legal to use in all circumstances.

You could install one of these on your own phone for your personal use, however installing them on a phone that belongs to someone else may be breaking federal or state laws. You can learn more by reading the lengthy disclaimers that you must agree to when you order one of these programs.

Impact on Family Law

The real question is even if you get the information you want, what will that do for you in your family law case?

I have never been involved in a family law case where one of these specific programs were used, but I have seen plenty of cases where a spouse or ex-boyfriend/girlfriend obtains information by snooping – sometimes legally, sometimes not. Rarely have I seen the “snooper legally benefit from the information in any meaningful way. In fact, what I have seen happen is once the other party finds out they have been snooped on, the legal activity (and bills) for both party’s escalate rapidly. The result is usually higher legal bills and questionable benefit!

A Florida Example of Spyware in A Divorce Case

Allowing evidence received from spyware into a hearing or trial is up to the discretion of the Judge. The judge decides this in part based on arguments presented by each attorney. Here are a couple of examples of why it may be difficult to legally benefit from information obtained from spyware.

First of all, Florida has a state statute (s. 934.09) which clearly states that it is illegal for a person to intercept wire, oral, or electronic communications. Secondly, there is case law supporting this statute. For example, in a 2005 Orlando area divorce case [O’Brien v O’Brien 899 So.2d 1134 ] that was appealed to the Florida Supreme Court, dealt with the interception of on-line chats via computer spyware between the husband and his girlfriend on a home-based computer. The court determined that the wife, pursuant to the Act, did illegally intercept the husband’s electronic mail and made the evidence inadmissible in court.

Cell phone spyware has not been directly addressed by the Florida courts that I am aware of but it is likely it would be considered inadmissible for similar reasons to the O’Brien case.

An Additional Caution

You can easily, and unknowingly, consent to various forms of spyware installation on your mobile devices when  agreeing to software licensing terms. Next time you get one of those notices to accept the software terms, take a few minutes to actually read what you are agreeing to. You might be surprised!