The Reality of Spousal Spying in Nevada Divorce Cases

Are you spying on your spouse or do you expect your spouse of spying on you?  Spousal spying occurs for numerous reasons.  Maybe one spouse has cheated on the other spouse in the past.  Maybe the spouse is simply insecure or has a need for control.

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Spouses also spy to gain leverage in a divorce or child custody battle. Whatever the reason spousal spying is an unhealthy activity for the person spying and also a sign of an unhealthy relationship. Some forms of spying can also be illegal as a federal crime or a state crime.

Spousal spying can include reading emails, social media monitoring, phone tapping, following, and video surveillance. These forms of spying may be illegal and hold federal and state criminal and/or civil penalties.

Federal Law

Spousal spying can be illegal under federal law.  The Electronic Communications Privacy Act (ECPA) of 1986 prohibits many forms of spousal spying.  The ECPA of 1986 expanded on the federal law on wiretapping to the intentional interception of unauthorized electronic communication.  The ECPA applies to, but is not limited to:

  • The interception of phone calls or the wiretapping of phones;
  • Voicemail;
  • Pagers;
  • Electronic messages, including email or social media messages;
  • Online chat communication;
  • Web-streaming video;
  • Voice-over IP; and
  • The recording or videotaping of private face-to-face conversations.

Reading the emails, private social media messages, or chat communication of another spouse can be a violation of ECPA. If the spouse accessing the email does not have authorization to do so then this will be in violation of the ECPA. If one spouse has given their email password to the other spouse then that spouse has been authorized to use the account.

Although, if a password was given for a specific reason and the spouse searches and reads emails other than for that specific reason this could be in violation of ECPA.  If a spouse receives information unintentionally, such as an email being sent by mistake, then this is not in violation of the ECPA because it only governs intentional interception.

The ECPA prohibits a person from intentionally intercepting or attempting to intercept a phone conversation or other electronic communication by use of electronic, mechanical, or other devices. If a spouse installs spyware software on their spouse’s cell phone without the spouse’s consent this is illegal.

Violating the ECPA can bring civil and criminal penalties.  A spying spouse may be ordered to pay damages, which increase the longer the violation occurred. The spouse may also be sentenced up to five years in prison for violating the ECPA.

When spouses are separated it is not uncommon for one spouse to obsess over the other spouse’s whereabouts and activities. A spouse that begins following their partner can quickly escalate into stalking territory.   The federal Interstate Stalking Act makes it illegal to cross-state lines with the intent to injure or harass another person and in do so placed that person or a member of the person’s family in a reasonable fear of death or serious bodily injury.

State Law

Many states have enacted their own versions of the federal ECPA.  Nevada statute NRS 200.610-200.690 makes some spousal spying techniques illegal.  For example, Nevada law requires the consent of both parties to a conversation for a phone call to be legally recorded.

In Nevada it is legal to record the in-person conversation of a spouse so long as one party consents.

A spouse found to violate one of these laws can be charged with a class D felony. In Nevada, a class D felony is punishable from one to four years in prison and the offender may be fined up to $5,000. The spouse is also liable to the victim spouse for actual or liquidated damages, punitive damages, and reasonable cost and attorney fees of the other party.  Actual damages are $100 per day of violation, but not less than $1,000.

Nevada also has a law making it illegal to use spyware. Under NRS 205.4737, it is illegal to use spyware. If one spouse downloads spyware on another spouse’s computer or phone this may be in violation of Nevada law unless the other spouse consents.  A spouse found violating this statute might be held criminally and/or civilly liable.

By state law a spouse does not have to cross state lines in order to be guilty of stalking. Under NRS 200.575, a person is guilty of stalking if the person willfully and maliciously engages in conduct that would make a reasonable person to feel terrorized, threatened, harassed, or fears for their immediate safety and/or a family member or household member’s safety and the person and/or family or household member actually does feel terrorized, threatened, harassed, or fears for their immediate safety.

For a first offense of stalking it is a misdemeanor and for any offenses after the offender is guilty of a gross misdemeanor. A person commits aggravated stalking if the person stalks and threatens the person with the intent to place the person in fear of death or substantial bodily harm and is guilty of a category B felony. Aggravated stalking is punishable by two to 15 years in prison and a fine up to $5,000.

If a person stalks by the internet, email, text messages and publishes or distributes the information in a way that substantially increases the victim’s risk of harm or violence then the offender is guilty of a class C felony punishable by one to five years in prison and up to a $10,000 fine.

Spousal Spying Should be Avoided

Spousal spying is not healthy for the spying spouse, the spouse being spied on, and certainly not the marriage.  Spying on your spouse is not only unhealthy, but may lead to criminal or civil repercussions on a federal and state level and should be avoided.  Also, if a spouse’s spying activities are found to be illegal any information the spouse may have uncovered cannot be used at a divorce or custody proceeding.

Educate Yourself with Our Guide to Nevada Divorce

Divorce is a serious decision, and we understand how stressful and uncertain the time leading up to your divorce can be. That’s why we’ve provided free answers to your most pressing Nevada divorce questions in “A Guide to Nevada Divorce”.