Do you suspect that your spouse is having an affair? Have you recently filed for divorce and feel you need more evidence to prove your case in court? Countless spyware programs and gadgets have been designed to access and record an individual’s computer use, and viewing a spouse’s emails or online messages is quickly becoming the most common way to discover wrongdoing.
Keylogging is one popular means of monitoring a spouse’s online activities. Some employers also use this keylogging to monitor employee use of the employer’s computers. A keylogger tracks every stroke made on a computer's keyboard without the knowledge of the user. Keylogger software is installed directly onto a computer, while the hardware plugs into a computer or a keyboard. When a person uses a computer that has a keylogger installed, each tap of a key is recorded and reported remotely or by physically accessing the machine.
Keylogging is used legitimately by businesses to troubleshoot technical problems, and it is a valuable law enforcement tool. However, it has gained notoriety as an effective way for hackers to steal private data including usernames, passwords and credit card information. Keylogging also enables a spouse to gather information about communications made by their partner through email and other Internet platforms. As to whether or not it is legal to do so, there is no definitive answer.
Federal and New Jersey wiretap statues were enacted in 1968 to protect the interception of wire and oral communications. Since then, Congress and state legislatures have struggled to keep pace with the evolution of electronic, digital and video communication devices. In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to protect the security of communications transmitted by new forms of technology such as email. New Jersey amended its wiretap act in 1993 to regulate access of stored electronic communications.
According to most state laws, it is legal to install spyware and other surveillance equipment on a computer you own or that you and your spouse own jointly. There are instances, however, when both the New Jersey Wiretap Act and the ECPA may apply to such activities. For example, if the computer is located in the marital home, the interception of emails may or may not be in violation of wiretapping laws, depending on the particular circumstances. If the emails were password protected or stored on your spouse’s work computer, accessing them could be a violation.
Although the use of a keylogger may help confirm your suspicions about your spouse’s wrongdoing, the evidence obtained may not always be used as leverage in a divorce case. Monitoring computer usage may constitute an invasion of someone’s right to privacy, and your spouse could use it against you in court. In New Jersey, an injured spouse can file a civil lawsuit against a partner they believe has invaded their privacy.
If you are concerned about being a victim of keylogging, make it as difficult as possible for anyone but you to access your computer. Lock your computer and phone when it’s not in use and do not share your passwords or PIN. You can buy anti-keylogger and antivirus software, but not all of these programs will detect or remove the keylogger from your system.
In addition, avoid using public Wi-fi networks such as those in hotels and libraries. Like malware or viruses, keyloggers can be spread by visiting infected websites or opening attachments from people you do not know.
Before you initiate computer or email monitoring activities or present any evidence you have obtained to the court, it is best to consult with a lawyer who can advise you on the local legalities. If you have been accused of conducting such activities, we are also here to help. Please call 973-509-8500 x213 or email LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.
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