Can you use a Keylogger to uncover a spouse's infidelity or hidden assets?

Keyboard-70506_640You and your spouse may be headed for divorce. Your spouse is on the computer frequently but shuts off the computer or the monitor whenever you come near. You become concerned that your spouse may be having an affair or may hide marital assets. Your spouse hasn't provided you with the websites he/she visits or his/her login information for any sites or their email.  You mention this to a friend who asks if you have considered using a keylogger.

A keylogger is a small computer program or app that is often installed on a computer (though as of this writing their are keyloggers for smartphones) that records every keystroke made by the users of the computer and stores that recording in a file on the computer. Many keyloggers also take periodic snapshots of the user's computer screen every few minutes.  Quite a few keyloggers then email the file with recorded keystrokes and the snapshots of the computer screen to you without anyone's knowledge.  The question remains whether you can use keyloggers to conduct surveillance on your spouse.

There is no specific RI Supreme Court case law addressing this answer from a divorce perspective.  Yet there are several considerations regarding existing law that should be made and lead me to my own conclusion.

The existing law considerations for using a keylogger on a computer to conduct surveillance on your spouse relate to the Federal Wiretapping Act (FWA), the Rhode Island Wire Tapping Act (RIWA), the federal Stored Communications Act (SCA) as well as laws relating to the violation of a person's right to privacy.

Though I have reviewed each of the Acts above, the Federal Wiretapping Act (FWA), when broken down into its component parts is the most detailed as it relates to private individuals and electronic communications, and provides, that the FWA with limited exceptions prohibits individuals from;

1) intentionally intercepting any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

2) intentionally endeavoring to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

3) intentionally procuring another person to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

4) intentionally procuring another person to endeavor to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications.

5) intentionally disclosing to any other person the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.  (namely, 19 USC § 2511(1) - the prohibitions subsection).

6) intentionally endeavoring to disclose to any other person the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.

7) intentionally uses the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection. (namely, 19 USC § 2511(1) - the prohibitions subsection).

8) intentionally endeavors to use the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.

The criminal punishment for violation of this Act is to be fined pursuant to the FWA and/or imprisoned for a period of not more than five (5) years. The FWA also provides that a person whose electronic communications are intercepted in violation of the FWA may proceed with a civil action for injunctive relief, civil and punitive damages, attorneys fees and costs.

These are the summarized provisions only for the FWA.  This is fairly restrictive and the definitions are very exacting.  The RIWA had the power to make narrower restrictions than the FWA.  Yet an analysis of the RIWA here is not truly necessary in my humble opinion given the extensive federal prohibitions. The only issue that arose in my analysis was whether a keylogger "intercepts" a transmission that passes through a wire related to interstate commerce.

In reviewing this particular aspect and analysis of the FWA as it related to keyloggers, I found a very persuasive though not legally controlling case heard in the Kent County Superior Court in the State of Rhode Island in the case of Williams v. Stoddard Case Number P2012-3664.  Based on the analysis in Williams regarding the violation of the FWA, RIWA, and the SCA when a wife used a keylogger to obtain her husband's login credentials and accounts and then accessed those accounts to get information for her divorce and for use against her husband's employer the North Kingstown Police Department.  The Court found in that case that the wife did, in fact, violate the FWA and the RIWA by her use of the keylogger and did, in fact "intercept" the communication using the keylogger and the subsequent disclosure of the contents of the information to her husband's employer.  The RI Superior Court also found that the wife was subject to a lawsuit for compensatory and punitive damages as a result of her violation of the FWA and her spouse's right to privacy. 

In Williams no distinction was made either by the court or by the parties as to (1) who owned the computer, or (2) whether the wife had the right to access or use the computer upon which the keylogger was installed, or (3) whether the computer was consistently connected to the .  Whether this was an oversight or a non-issue as it related to the analysis by the parties or the court is unclear.  However, the analysis in the case is consistent with the language of the FWA and the rule of statutory interpretation that the court in arriving at the meaning of a statute is to, if at all possible, give efficacy and meaning to a statute based upon its intent.

Ultimately, it is my conclusion based on the current language of the FWA and the persuasive case law combined with a review of the language of the RIWA and the SCA that the use of a keylogger to conduct surveillance on your spouse on any computer constitutes the unlawful interception of electronic communications in violation of, in the least, the FWA and very likely the RIWA and thus is illegal and subjects persons using keyloggers or having others use keyloggers for them of being charged criminally and subjects the person to criminal fines, penalties and/or incarceration.

When in doubt, use legal means to conduct your surveillance or obtain the information necessary for your divorce case and consult an experienced attorney as to whether the manner you want to use to obtain information on your spouse is legal before attempting to use it.



How do I start a Rhode Island divorce proceeding?

Divorce_womanQUESTION:  How do I start a Rhode Island Divorce?

ANSWER:  First, let me say that personally and professionally that with what I have learned in almost two decades practicing divorce in Rhode Island, I do not recommend filing or putting through your own divorce. In the very least, you should get legal coaching/advice from a lawyer who regularly practices Rhode Island divorce before you fill out and file the paperwork.  Every divorce is not the same, no matter how simple you may think it is.  The court clerk's office will provide you fill in the blank forms and they may give you samples of how other family court litigants might fill them out.  They may even give you general questions to give you an idea of what a judge might be interested in knowing at the time of your divorce hearing.  However, every (and I do mean "every") divorce is different and no form is a substitute for legal advice. The forms provided by the courts are intended to follow the minimal guidelines provided by law.  They are not intended to protect your rights nor should you expect to receive instructions on what to fill in to make sure your rights are protected.  It is the obligation of each person or their attorney to protect your rights by filling in the form or even by modifying the form if necessary with the correct legal terms so that your rights are properly protected.

To start a divorce proceeding you need to get what I call a "divorce filing packet" from the Rhode Island family court.  You can get the documents that comprise this packet at the domestic clerk's office. This packet consists of the following documents.

1.  Civil Case Cover Sheet;

2.  Complaint for Divorce/Complaint for Divorce from Bed and Board;

3.  Statement Listing Children;

4.  DR-6 Financial Statement of Assets, Liabilities, Income, and Expenses; and

5.  Four (4) Language Notices - English, Portuguese, Spanish, and Cambodian

To start your divorce, you fill out the foregoing documents and file them with the Domestic Relations Clerk's Office in the Rhode Island family court in the county where the Defendant resides within the state. If the Defendant does not reside in Rhode Island, then you file in the family court in the county where you reside, provided you have been a resident and continuously domiciled inhabitant of the State of Rhode Island for at least one year before you file.

When these documents are filed correctly with the family court you will pay a mandatory court filing fee which may include a technology surcharge which currently amounts to $145.32 as of March 11, 2019.

Upon filing, you must check back with the court to find out if your filing has been accepted.  Once accepted, the court generates a Summons with Proof of Service and Notice of Automatic Orders.  You then must arrange to make proper due process service on the Defendant pursuant to Rhode Island law and the Rhode Island Rules of Domestic Relations Procedure. Service requirements vary depending upon whether the defendant is within Rhode Island, in another state, in another country or in the military.

Generally speaking, this is how a divorce proceeding or a legal separation proceeding is started in Rhode Island as of March 11, 2019.

What factors does a Rhode Island family court judge consider when a parent wants to relocate with a minor child?

RelocationA relocation case in the Rhode Island family court typically occurs when one parent who either has primary physical placement or joint physical placement of one or more minor children wants to relocate with that minor child outside the state.

Relocation cases are very often opposed and a fair number of them go to trial unless you can reach an agreement or accommodation with the non-relocating parent as to how and when they will have visitation or parenting time with the minor child or children and how transportation might be arranged, etc..  In joint physical placement cases where each parent has the minor child or children 50% of the time, if the relocation is a significant distance such that their can no longer be joint physical placement, then often times a trial is inevitable.

During a trial both sides present evidence regarding the children, the family, schooling, relationships, etc.. that typically fall into the factors set forth by the RI Supreme Court in Dupre v. Dupre, 857 A.2d 242, 257-60 (R.I. 2004) that judges must consider in relocation cases.

The relocation factors judges must consider are as follows:

1.  The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent.

2.  The reasonable likelihood that the relocation will enhance the general quality of life for both the child and the parent seeking the relocation, including, but not limited to, economic and emotional benefits, and educational opportunities.

3.  The probable impact that the relocation will have on the child's physical, educational and emotional development. Any special needs of the child should also be taken into account in considering this factor.

4.  The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements considering the logistics and financial circumstances of the parties.

5.  The existence of extended family or other support systems available to the child in both locations.

6.  Each parent's reasons for seeking or opposing the relocation.

7.  In cases of international relocation, the question of whether the country to which the child is to be relocated is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction will be an important consideration.

8.  To the extent that they may be relevant to the relocation inquiry, the Pettinato factors [1] will also be significant. 

Typically relocation cannot be for a frivolous purpose or to deprive the other parent of their placement or visitation rights.  Ultimately the court will look so see where, how and why the relocation is taking place and what its anticipated affect is on the child and parents as well as extended family relationships and support systems.

Since relocation almost invariably relates to the best interests of the minor child, the parent seeking to relocate and the non-relocating parent should also consider and present evidence to the court how the relocation will affect the best interests of the child as set forth in Pettinato to the extent that the Dupre relocation factors do not already address those best interests.

[1] Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990) (Sets forth for the seven (7) though non-exhaustive list of factors that must be weighed when determining the best interests of the minor child.)