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« Cash(less) on the Road | Main | The Wrong Kind of Privacy »

For Better, For Worse, or Until I Decide to Spy on You

posted by:Dina Mashayekhi // 11:59 PM // September 11, 2007 // ID TRAIL MIX

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Being recently married, I still haven’t quite adjusted to the idea that you can’t change certain traits in your spouse. For example, my other half tends to view cell phones as a leash, and he regularly “forgets” to call me when he’s going to be late, or going out after class or work. As a result, I end up panicking, thinking he has been in a terrible accident and is unconscious somewhere, and I promptly begin my routine of repeatedly calling his cellphone (which is usually off or at the bottom of his bag on silent mode). By the time he finally gets to the phone and sees 18 missed-calls from me, I’m usually anxiety ridden and he calls me laughing, telling me I’m crazy, and that he’s on his way home. This conversation is usually followed by certain expletives and ends with my threat that I’m going to implant him with a GPS tracking device.

Of course, when I raised this idea, I was completely joking. For the sake of fantasy, my ideal device would be a microchip and to my knowledge, the Verichip doesn’t operate as a GPS device for commercial use (yet). Such a use would also run contrary to my convictions as a privacy advocate, but at times, I feel as though my sanity is at stake. I decided to inquire further into the practical aspects of my GPS threat (after all, there’s no point in a threat without any substance), and to examine the idea of spousal surveillance in general. [i]

The Newly Married or Soon-to-be-Married

I first looked to an online forum that is geared towards wedding planning and is frequented by brides-to-be and newer brides. I visited this forum quite a bit back in the wedding-planning days. I posted a simple 3-question poll. My questions weren’t intended to examine the moral implications of surveillance; rather, I was just trying to get a basic overview of what people would do.

My first question was “Have you ever used any type of surveillance on your spouse?” Out of 154 responses, 10 people (0.6%) answered Yes, with the remaining 144 (93%) answering No. The types of surveillance, whether electronic or not, were not specified. My second question was “Have you ever read your spouse’s email without him knowing?” Of 155 replies, 92 (59%) answered Yes and 63 (40%) answered No. A few people, however, chose to comment on this question stating that they have their spouse’s implicit consent to check their email. Finally, my third question was “If given the opportunity, would you use GPS tracking or an RFID chip to track your spouse?” Out of 155 replies, 21 (13%) answered yes, and 134 (86%) answered No. Some people who chose “Yes” commented that they only chose “Yes” because they would want the option in case of an emergency situation and not because of a lack of trust. Others confirmed that they would not want to so much “track” their spouse, but would want to be able to “find” them when necessary. And, of course, some users pointed out if you got to the point where you needed to resort to tracking your spouse, your relationship was in serious trouble. One user relayed a story of a past relationship where reading her boyfriend’s emails, and trying to find out what he was doing, confirmed that he was cheating on her.

From this small poll I learned that (a) I’m not the only one who has little fantasies about wanting to know where her spouse is and (b) More spouses than I’d expected have read their partner’s emails.

Marriage, Surveillance, and Privacy

This lead to my next finding -- a major target audience of surveillance software, surveillance devices and GPS products is married spouses. As I was searching for various products, it seems that they were geared towards tracking and catching that “wayward” spouse. More often that not, website visitors were invited to catch their “cheating wife” in the act. I actually did not find one product marketed towards safety for worriers (my initial purpose). I was impressed by the array of technologies available, saddened by the distrust existing in marriages, and concerned by the lawfulness of many of these technologies.

In her article “Spy vs. Spouse: Regulating Surveillance Software on Shared Marital Computers”, [ii] Camille Calman raises arguments in favour of the regulation of surveillance software on shared computers between spouses as a basis of bringing consistency to the law of communications privacy and reinforcing the social perception of marriage as a partnership of autonomous individuals characterized by mutual trust. Calman examines laws governing the protection of information and the concept of the reasonable expectation of privacy. She reasons that the use of surveillance technology for “spying on a spouse cannot be justified by the rationale that spouses have a lower expectation of privacy within marriage than they do with outsiders.” She traces the lack of recognized privacy rights between spouses to the lack of legal rights given to women upon marriage until the nineteenth century. Married women were, after all, considered to be subordinate to their husbands and the couple was seen as a single legal entity. She explains:

Changes in privacy law and in social constructs of marriage converge in the area of communications privacy. One of the most important aspects of personal autonomy is freedom to communicate with other persons. The law does not require married couples to tell each other everything; such a requirement could not be practically enforced. Entry into marriage does not entail signing away the right to communicate privately with persons outside the marital relationship. Some writers have described spheres or zones of privacy, with an innermost zone open to no one, and the next zone open only to spouses, close friends, and relatives. Even within those inner spheres, the law does—and should recognize a right of personal privacy.
Certainly individuals within a marriage have far more access to each other’s private information than strangers would. Spouses can behave in many ways that are intrusive but not legally actionable: They can read letters or e-mails or credit card bills that their spouses have already opened; they can eavesdrop on live conversations; they can rummage through filing cabinets; they can read diaries. But the use of electronic devices to spy at times and in places where live eavesdropping is impossible—to eavesdrop in a way that evades the likelihood of detection— seems to cross a line.
A person’s right to privacy is not absolute and must be weighed against countervailing rights and social interests. Clearly the expectation of privacy is lower within a marriage than in other less intimate relationships. Some reasonable expectation of privacy remains, however, and spousal spying by surveillance software violates that expectation. [iii]

While it is true that spouses have access to aspects of each other’s lives, which are essentially off-limits to others, it doesn’t seem that this grants one spouse an unencumbered right to spy on the other.

The Law and Spousal Surveillance

As far as I know, laws governing communications privacy do not make exemptions for spouses or family members. Section 184(1) of the Criminal Code [iv] makes it an offence to intercept a private communication except in limited enumerated circumstances.

184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

It is clear then, that this law would prohibit one spouse from surreptitiously recording the telephone conversations of the others. A spouse would fall under “every one”. Additionally, the Canada Post Corportion Act [v]prohibits the opening of mail by anyone other than the addressee:

48. Every person commits an offence who, except where expressly authorized by or under this Act, the Customs Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, knowingly opens, keeps, secretes, delays or detains, or permits to be opened, kept, secreted, delayed or detained, any mail bag or mail or any receptacle or device authorized by the Corporation for the posting of mail.

Again, “every person” would include a spouse. It is understood that this applies to postal mail only; however, it raises the questions as to why the same guarantees of privacy aren’t afforded to electronic mail. There are clear laws prohibiting wiretapping, opening postal mail addressed to somebody else, and regulating electronic surveillance in certain situations; however, the law appears to turn a blind eye to spousal spying and the technologies used therein.

In the United States, the laws governing communication privacy similarly refer to “whoever” opens the mail or “any” unauthorized person recording telephone calls. American jurisprudence is ripe with examples of spouses attempting to use electronic surveillance to the detriment of the other. Calman points to two cases in the 1970s where federal appellate courts carved out a marital exemption. In Simpson v. Simpson [vi], the Fifth Circuit held that although the “naked language” of the Wiretap Act seemed to prohibit all wiretapping, Congress could not have intended to intrude into the marital relationship. The court also did not wish to interfere with the interspousal tort immunity that then existed in a majority of states.

The Second Circuit reached a similar result in Anonymous v. Anonymous [vii], in which a husband recorded his wife’s telephone conversations with their eight-year-old daughter, hoping to use the tapes in a custody fight. While holding that Congress had not meant to create a blanket exemption for all spousal wiretapping, the court declined to apply the Wiretap Act. It held that this was a domestic conflict, which did not involve the privacy rights of anyone outside the family, and which would be better handled by state courts. Both decisions have been widely criticized and Simpson was overruled in 2003 in Glazner v. Glazner [viii], explicitly on grounds that the plain language of the statute precluded the spousal exemption.

One notable case comes from New Jersey. In M.G. v. J.C. [ix] a husband surreptitiously recorded his wife’s telephone conversations in the marital home. The conversations disclosed that the wife was having a non-heterosexual affair. The husband confronted the wife and threatened to use the tapes in a custody battle, as well as disclosing the tapes to friends and family. As a direct result, the wife suffered extreme emotional distress and required extensive psychological care. The husband went one step further and played the tapes for the wife’s sister and offered to play them for other family members and friends. The wife sued for damages and obtained $10,000.00 in compensatory damages and in consideration of the husband’s willful and wanton disregard of the wife’s right to privacy, he was assessed $50,000.00 in punitive damages. In Florida, an appellate court affirmed the trial court’s refusal to admit evidence obtain by a wife using the Spector surveillance software. The Court ruled that by installing the Spector spyware on her husband’s computer, and reading the logs, the wife had in fact broken the Florida wiretapping law, which says that anyone who intentionally intercepts any electronic communication without appropriate authority commits a criminal act. [x]

Canadian jurisprudence does not appear to have considered spousal surveillance to the same extent as American case law. A case from the early 1990s, Seddon v. Seddon [xi], considered surreptitious recordings, which were obtained by a voice activated device. The court was faced with an application to vary interim custody and the 20 hours of recordings were supposed to demonstrate the mother’s shortcomings when dealing with her children. The court refused to vary custody and deferred the issue of admitting the recordings to the trial judge. The trial judge did not admit the recordings but did not explain his reasons. [xii]

The dearth of Canadian case law and statutory protections for individuals in a marriage may become problematic as technologies become increasingly affordable. In some cases, these technologies are directly breaking the law [xiii], while in others, they occupy a grey area. Although divorce laws are applied on a “no fault” basis, the product of surreptitious surveillance and recordings could readily be used in custody cases when determining the best interests of the children. The surveillance and recordings could also be used by one spouse against the other in order to leverage a more favourable property settlement where the recordings could be damaging/embarassing. In the absolute worst cases, these technologies can be used by abusive spouses to further their ability to control and terrorize their partners. [xiv]

Conclusion

In the end, I decided that it would probably be healthier for my relationship to hold off on the GPS and to try to communicate the virtues of calling when you’re not coming home and keeping your cellphone turned on. Spouses are in a legally vulnerable position. The mutual trust and respect that forms the basis of these relationships can easily be exploited by one spouse in a climate where there are few repercussions.

Dina is a 2005 graduate of the University of Ottawa Common Law Program and a former student member of the idtrail project. She is currently pracitising labour and employment law in Ottawa and has a special interest in employee privacy issues.

[i] For those who don’t know me, I wouldn’t ever plant a GPS device on my husband. My postulation remains in jest.
[ii] (2005) 105 Colum. L. Rev. 2097.
[iii] Ibid. at 2113-14.
[iv] R.S., 1985, c. C-46, s. 184.
[v] R.S., 1985, c. C-10, s. 48.
[vi] 490 F.2d 803 (5th Cir. 1974).
[vii] 558 F.2d 677 (2d Cir. 1977).
[viii] 347 F.3d 1212 (11th Cir. 2003).
[ix] 254 N.J. Super 470 (Ch. Div. 1991).
[x] O’Brien v. O’Brien, 899 So. 2d 1133 (Fla. Dist. Ct. App. 2005).
[xi] 1993 CanLII 2597 (BC S.C.).
[xii] 1994 CanLII 3335 (BC S.C.).
[xiii] See http://www.usdoj.gov/criminal/cybercrime/perezIndict.htm “Creator and Four Users of Loverspy Spyware Program Indicted”.
[xiv] See http://redtape.msnbc.com/2007/08/leah-lived-for-.html “High-Tech Abuse Worse Than Ever”.

Comments

Until I read footnote [i], I was very concerned. In fact, I was setting up my cell phone to block calls from your phone number and preparing to flee the country! I don't want an implant!

Posted by: Dina's Spouse at September 11, 2007 09:40 AM

Hmmmm. I wonder if using the Spector surveillance software to spy on your kids (just like the ads say you should do) would be considered a violation of the Florida wiretapping law?

Posted by: Eric Norman at September 11, 2007 09:30 PM

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