In 2020, where we find ourselves spending more time at home with family than in year’s past, it is not uncommon for suspicions to arise between spouses about what or, more importantly, who may be on the other end of that oddly timed text notification or phone call.
In this situation, many are drawn to doing their own sleuthing, such as looking at their spouse’s cell phones, iPads, computers or other electronic devices. Others go a step further by installing observation software on electronic devices, or recording (by video or orally) or otherwise tracking their spouse. While this type of self-help may be the easiest and cheapest first step for those in search of answers, it may not be permissible under Maryland law.
These are the top 5 questions we get asked most often on this topic:
1. Can I audio-record my spouse?
You’ve caught your spouse in a lie and now he or she is confessing. Or you’re overhearing your spouse’s conversation with their paramour and want to capture their words. Is it legal to surreptiously record those conversations? No. In Maryland, you need the consent of all parties participating in the call or conversation in order to legally audio-record them. So, if your spouse is confessing, make sure to record them giving their consent to being recorded before the fireworks start. Anything recorded after that consent is fair game.
2. Can I video-record my spouse?
Your spouse is coming home late or passed out drunk or high, or you want to see what they are up to when you are not home. Can you make these video recordings without their knowledge or consent? Yes. In Maryland, you can video record someone, including in your home, without the consent of the persons being recorded. But, you cannot use hidden video cameras to record in places where someone would expect privacy, such as a bathroom or bedroom.
3. Can I look at my spouse’s texts, emails, call logs, and voicemail from his/her smartphone?
If you have been granted access to your spouse’s Smartphone, either by them having no passcode or sharing their passcode with you, then under Martin v. State, 218 Md. App 1 (2010), you can access it and view their texts, emails, call logs, voicemails, and anything else that may be accessed on that Smartphone (including social media and dating apps in many instances). This is due to the loophole in the Stored Communications Act as exposed by Martin v. State, which excludes cell phones from the types of devices to which the Stored Communications Act applies. Beware, if other Apps or software on that Smartphone require further verification, by way of passwords or passcodes, and you have not been given those passwords or passcodes, then you cannot access it.
4. What if I’m able to guess my spouse’s password(s) or passcode(s), can I use it/them?
No. Bad idea. Stop.
While we’re on the topic, it’s also not OK to create fake or dummy social media accounts to surreptiously follow or observe others. Long story short – if you have to make any effort to circumvent the other’s security without their permission or consent, you’re probably doing something wrong.
5. What if my spouse logged in and didn’t logout on a family computer or iPad, can I hop on? And, what if my spouse logged in and didn’t logout on his/her personal computer or iPad, can I hop on to look?
Yes. In these instances, they’ve, by their own actions, given you access. But, be careful about what you do when on these devices. Acting as your spouse, with their device, could get you into trouble. Better to observe and report than participate, no matter how strong the impulse!
The laws in every state can be different on these topics. Before you undertake any of these steps elsewhere, you should consult a lawyer who knows the law to make sure what you are doing is legal.
Erik Arena and Erin Kopelman are divorce attorneys who handle cases involving domestic relations and family law. For more information, contact Erik at [email protected] or Erin at [email protected].
