Think Twice Before Installing Spyware on Spouse’s Computer or Smartphone

Defined generally, spyware is any software installed on a computer without the user's knowledge that tracks the user's conduct. From following online shopping habits to recording every keystroke, spyware can be fine tuned to keep track of just about anything done electronically.

The practical implications of spyware in the family law context are obvious. However, is it legal in Virginia to use spyware to electronically monitor, say, a suspected cheating spouse?

Pose the question to a group of Fairfax family law attorneys, and you will quickly find out that the law surrounding spyware is murky at best. Even a quick overview of Virginia's applicable legal standards can help you understand more about the implications of using spyware to uncover the truth.

Virginia's Computer Trespass Law Limits Spyware Use, but Federal Legislation Also Operative

A web of federal and state level laws surrounds the use of spyware in Virginia. The permissibility of spyware depends heavily upon variables such as how the collected information is used, the relationship between the installer and target of spyware, and the type of device being used as a spyware vessel.

The most important state level law in the spyware context is Section 18.2-152.4 of the Virginia Code, which pertains to the crime of computer trespass. Computer trespass encompasses a variety of electronic acts done with "malicious" intent, chief among them using computer software to record information inputted into the computer "without the computer owner's authorization." There is, however, an exception carved out for parents or legal guardians who use software to monitor the computer usage of a minor child.

So what about checking up on your spouse using spyware when you are the computer owner? Although you may have a legal argument around Virginia's computer trespass law, and there is no specific federal legislation against spyware, a number of state and federal statutes not specific to spyware - like those regarding computer privacy and wiretapping - will probably put a spying spouse (even if proven right about cheating allegations) on the wrong side of the law.

Procedural Means To Obtain the Same Information Legally

It is highly inadvisable to use spyware without considering the legal ramifications, even if you only seek to satisfy your own suspicions. Not only could using spyware put you in jeopardy of criminal liability; any information you do gather will likely be inadmissible as evidence in court.

Yet, if you suspect your spouse may be hiding something electronically, spyware prohibitions do not necessarily mean it is beyond your reach. Going through the court process, your attorney may be able to obtain an order that formally (and legally) forces your partner to provide information, or permits you to procure a computer forensic analysis.

By taking things into your own hands with spyware, you are stumbling blindly into a legal trap. Talk to a Virginia family law attorney before pursuing any electronic information gathering outside approved judicial channels.