Jenette M. Schwemler, PC

Spying on Your Spouse

Before you start spying, talk to an attorney

Filed in Divorce, on August 7, 2018

Many people think that they can whip out their iPhone and record their spouse engaging in bad behavior to bolster their child custody case.  Some people think it is okay to retrieve their spouse’s e-mails if they are kept on the family computer.  Some really sneaky people go to the extent of placing GPS tracking devices on their spouse’s car.  If you are considering engaging in these acts, speak to an attorney first, or don’t do it at all.

Eavesdropping:  720 ILCS 5/14-1 et seq.

Eavesdropping, in Illinois, does not just mean listening to someone else’s conversations.  Included in the legal definition is “secretly or surreptitiously” recording conversations.  Illinois is an “all party consent” state, which means you must have the consent of all parties you are listening to and/or recording.   

However, there are some exceptions to the rule worth noting.  If you are “open and conspicuous” while you are making the recording, this is an exception.  So, if you spouse is intoxicated and acting belligerently at your child’s football game and you are openly recording the game and just so happen to catch it all on tape, this would fall into the exception.  But, be careful.  There are exceptions to the exception.  The “disorderly conduct” law in Illinois (720 ILCS 5/26 et seq.) limits your ability to record even openly and conspicuously when inside or outside another persons residence (without their consent to recording).

You can record your spouse if you immediately inform him or her that you are doing so.  Make sure that when you make this announcement, it is also recorded so that your spouse cannot claim there was no knowledge.  However, if her or she is intoxicated, be careful.  If your spouse is too intoxicated to give “informed consent,” you may find yourself in trouble.

The only time you can secretly record your spouse (or anyone else) is when you have a “reasonable suspicion” that he or she is committing, about to commit or has committed a criminal offense against you or a member of your immediate household and there is reason to believe evidence obtained of the criminal offense may be obtained by eavesdropping.  I do not recommend that you hang your hat on this exception because “reasonable suspicion” can mean different things to different people.

The possible sentence for violating the Eavesdropping Statute is a Class 4 felony for the first offense and a Class 3 felony for any subsequent offenses.  And, you will not be able to use the evidence in court against your spouse in any civil or criminal proceeding.

You can also run afoul of the Federal Wiretap Law (18 USC 2510).  This law is very long and too complicated to give a summary within this article.

Computer Tampering:  720 ILCS 5/17-51

Just because the computer in the house is treated as the “family computer” does not mean you have the authority to access your spouse’s private e-mails.  It unlawful for a person to access a computer or any part thereof (including data) without the owner’s consent.  Don’t get cute with this – the definition of “computer” includes a cellular phone, so you can’t claim a defense based on accessing the e-mails on a phone versus a computer.  Sentencing for this violation ranges from a Class B misdemeanor to a Class 3 felony.

GPS Tracking:  720 ILCS 5/21-2.5 (Electronic Tracking Devices Prohibited) and 720 ILCS 5/12-7.3 (Stalking)

Placing a GPS tracking device on your spouse’s person or vehicle can also get you into trouble.  Illinois law prohibits the use of a GPS device to track the location of a person without consent.  This rule becomes a little murky when a vehicle is titled in both parties’ names.  The question becomes whether you need both parties’ to consent in this instance.  This is a Class A misdemeanor.

There is also the possibility of getting charged with stalking.  The Illinois Stalking Law prohibits placing another person under surveillance with an electronic tracking device without consent.  Stalking is a Class 4 felony for the first offense and a Class 3 felony for subsequent offenses.

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