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April 2019

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.