Hidden cameras and GPS tracking: The legality of using surveillance in a divorce

In a divorce, spouses seem to think that the war is won through surveillance. A recent Wall Street Journal article reported that due to the increasing availability of spy-gear, 'technology is turning divorces into an arms race' with tech companies reporting an uptick in sales of hidden cameras and GPS tracking devices. The same WSJ article cites an American Academy of Matrimonial Lawyers report that states 92% of lawyers surveyed saw an increase in evidence from smartphones – text messages, emails, call histories, and even GPS location information. Just how legal is spying on your spouse when you are in the middle of a divorce? If you live in Iowa, it's not. In the case In re Marriage of Tigges, the wife alleged that her husband had surreptitiously recorded her activities in the marital residence after she found hidden cameras in their bedroom. She argued that she was entitled to compensation for the husband's tortious violation of her privacy rights, while the husband argued that she had no reasonable expectation of privacy in the marital home and that the only publication of the tape was when the wife permitted her sister to watch it. The district court found that he invaded her privacy and entered a judgment against him in the amount of $22,500, and the appellate court upheld the ruling, stating that she had a reasonable expectation that her activities in the bedroom were private when she was alone in that room, whether or not they were still married or lived in the same house at that time. The Tigges Court cited to Clayton v. Richards, 47 S.W.3d 149 (Tex. App. 2001), a Texas court of appeals decision, which stated that the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse. In 2010, however, a federal judge in Texas ruled that the Federal Wiretap Act did not apply to inter-spousal wiretaps. The moral of the story? Be careful – and lawful – with how you obtain your evidence. When a judge asks just how you know your spouse is having an affair, you may have to confess to installing a GPS tracking device on the family car. You may have won the battle there, but you probably won't win the war.  

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Mary Zambreno