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August 01, 2021 Feature

The Price You’ll Pay to Press Play: When and Why You Should Think Twice Before Recording Your Spouse

Michaela Cronin

You may be tempted to record your spouse on the sly in a particularly contentious moment—especially when a nasty divorce or custody battle is looming. Heated arguments, candid admissions, and physical altercations may seem to present perfect opportunities to hit “record,” catching your soon-to-be ex in the most unflattering of lights for all (read: the court) to see. However, the implications of spousal recordings vary from state to state and may even subject you to liability yourself. So, what are the most important factors to consider before putting your spouse on the virtual permanent record?

One- versus Two-Party Consent States

States apply different wiretapping laws, which govern when recording another individual is permissible. In general, any given state can be categorized as either a “one-party” or “two-party” consent jurisdiction (although each state may have its own unique legal intricacies to explore). Over ten states employ two-party consent laws (including California, Florida, Massachusetts, and Pennsylvania) that afford individuals the strictest protection of their fundamental right to privacy. In these states, all parties captured on an audio recording must know and consent to being recorded. A person who records another without permission could expose themselves to criminal penalties as a result—and the audio file certainly would not be admissible in court.

Alternatively, in one-party consent jurisdictions, only one party to a recorded conversation must consent, which makes catching bad behavior on tape a more valuable (and legal) exercise. However, even in these states, it is unlawful to intercept and record a conversation to which you are not a party, such as secretly recording your spouse’s private phone conversation with a third party. States in both types of jurisdictions typically apply exceptions for communications captured by police, emergency service personnel, and the like. Also, audio files like voicemail messages are likely to hold up in all state courts because the speaking party undoubtedly knew he or she was being recorded without condition.

In view of these rules, it can quickly become much more complicated than simply pressing “record.” As our abilities to travel and speak to each other from across the globe at just the click of a button expand with constant advances in technology, we continue to communicate with our partners across state lines. This raises several questions when it comes to recording. In which type of jurisdiction are you creating the recording? In which type of jurisdiction is your out-of-state spouse speaking to you from, and where is the device you are using to record them located? Most importantly, which jurisdiction’s laws control? These issues will be best addressed by your attorney.

Federal Consent Laws

Once state lines are crossed, it can also be difficult to discern whether state or federal law applies (or both). The Federal Wiretap Act at 18 U.S.C. § 2520 imposes a one-party-consent-type standard, subject to certain exceptions. It was originally written to cover only wire and oral communications, but it has since been revised to protect electronic communications as well, such as private emails and text messages to which a person has a reasonable expectation of privacy.

As a result, you should reconsider before hacking your ex’s password-protected Gmail account, even if you think they have given you free reign to browse their online activity. For example, maybe your spouse permits you to use their Amazon account to order school supplies or stream movies for your kids. However, this consent is likely limited—you can order backpacks, but you cannot check the order history for proof of adulterous gifts sent to a secret sweetheart. It is easy to see how the lines could start to blur as you consider information your spouse makes available to outside parties on social media sites like Facebook and Instagram.

Nonetheless, screenshots of your online sleuth work might violate federal law, which begs the additional question of what exactly qualifies as consent. Can consent be implied, or must it be explicit? Can it be retracted, and when? Is consent given under false pretenses sufficient? Again, the answers to these questions will depend on the applicable laws, which makes determining your rights to record quite a challenge without your lawyer’s help.

Recording Your Spouse’s Interactions with Your Children

As you may know all too well, at the center of any child custody dispute is determining what resolution is in the best interest of the child. It naturally follows that a child’s relationships with his or her parents will play a large role in awarding custody, which may make documenting how your spouse speaks to or treats your kids feel imperative. This could easily be accomplished by recording your child’s conversations with your spouse on the phone or asking your child to recount on camera something your spouse said to them. Still, recording these interactions is often subject to restriction.

Some one-party-consent states grant parents vicarious authority to consent to the recording of a conversation their minor child has, but some do not, and the same would be impermissible in a two-party-consent jurisdiction without obtaining the consent of the person the child is speaking to.

At the same time, minor children may not have the same expectation of privacy to their cell phones and electronic inboxes as adults do, especially if these accounts are actively monitored by the child’s parents. This might deem text messages sent from your spouse to your child evidencing his or her unfitness to parent admissible in court. Regardless, the scope of the privacy protections afforded to children under the law is a particularly sensitive area and should be handled with care. It is important to consult your lawyer before involving your children in any effort to capture recordings for use in a legal dispute.

Audio-Visual versus Visual-Only Recordings

Although state and federal laws closely monitor our power to record the spoken word, the standards are much more relaxed when it comes to soundless video recordings. Videos captured without sound are generally admissible as evidence in court, unless the person being recorded had a justifiable expectation of privacy in the moments covertly caught on camera. For instance, your wife might be justified in her expectation of privacy while taking a shower in your home, but not while walking through the supermarket or dining out downtown. So, a silent video of the latter is probably fair game while video recording the former would constitute a violation.

You may possess more soundless video content than you realize. For example, many families use camera-equipped home security systems that store soundless video files as data, or live-feed video recording devices to keep an eye on pets while they are away. Again, videos from these devices will likely face an expectation-of-privacy-type argument from your spouse’s counsel because they capture activity carried out inside the privacy of the home, unless good reason exists to the contrary. It may be worth showing your attorney, for instance, silent security footage that caught a fight with your husband unfolding in the public street abutting your house.

Recordings Created During Your Honeymoon Stage

Many people may not consider recording a spouse until long after the marital bliss has disappeared, but plenty of couples are eager to document their love story while it is still harmonious. Unfortunately, recordings created during this time do not always age well and could come back to haunt you when things get ugly. Namely, many people are faced with the threat of revenge porn after romance breaks down.

The intentional and nonconsensual distribution of pornography online is a serious sexual harassment offense in many jurisdictions, even if the party pictured consented to the recording when it was made. Releasing this material may therefore invite an onslaught of civil and criminal lawsuits. Although the vast majority of states have enacted statutes outlawing the dissemination of revenge porn, these laws are relatively new and still developing. Presently, most require a combination of several distinct elements: the publication of photos or film; showing the genitals, anus, and/or female breast of another person; while that person is engaged in a sexual act; for the purpose of annoying, harassing, or embarrassing the person depicted.

Criminal penalties vary from state to state, with most allowing for a combination of monetary fines and jail time based on the severity of the offense. For instance, committing a revenge porn offense in Arizona can be penalized with a fine of up to $150,000. Revenge porn offenders may also be charged in connection with other crimes, including cybercrimes and the possession or dissemination of child pornography if the victim is underage. Some may even be required to register as sex offenders if convicted.

What to Do If You Think You Are Being Recorded

Spousal recording is risky business not only for the recorder, but also for the recorded partner, marital children, and any neutral third parties involved. If you suspect your spouse is capturing unlawful recordings of you, stay calm. Do not meddle with recording devices or delete any recorded material you find, as these items may qualify as criminal evidence and are thus subject to evidence tampering. Moreover, the recordings may simply show you acting reasonably in conversations with your spouse and could potentially dispel any false accusations being made about your marital conduct, should they somehow make their way to court.

Contact your attorney immediately if you are considering recording your spouse or suspect you may be being recorded yourself. Your attorney can help you communicate the necessary information to the court within the bounds of the law. Your legal team can also speak with you about the related corollaries of bringing spousal recording concerns to the judge, such as protecting your right to privacy, giving misleading impressions of vindictiveness to the court, demonstrating your willingness to comply with court orders and rules, and more.

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Michaela Cronin is an associate with Moore & Van Allen, PLLC in Charleston, South Carolina, concentrating her practice on trusts and estates matters. She also has experience handling general litigation matters, and previously served as a student attorney for the Villanova Farmworker Legal Aid Clinic and judicial extern for the Honorable Gerald J. Pappert of the Eastern District of Pennsylvania. During law school, Michaela served as a staff writer for the Villanova Law Review, legal writing teaching assistant, research assistant, and student fellow for the Center for Ethics, Integrity, and Compliance.