NPR has been reporting on a chilling trend in technology and in love — the use of spying tools when couples split up. Are these tools legal?
STEVE INSKEEP, HOST:
Let’s dig more deeply into a trend in love – or rather, its end. We reported yesterday on a woman whose ex-husband used a digital spying tool to track her moves. Divorce lawyers say electronic spying factors in many of their cases. So let’s ask how this spying works and whether it’s legal. NPR’s Aarti Shahani and Lauren Silverman of our member station KERA have been covering this story, and they’re both with us. Hi, guys.
AARTI SHAHANI, BYLINE: Hi.
LAUREN SILVERMAN, BYLINE: Hey, Steve.
INSKEEP: Aarti, you first, what got you thinking that this might be a trend?
SHAHANI: Well, you know, as a matter of fact, I have friends who are going through divorces – ugly divorces. And they’ve absolutely thought about spying tools – I mean, whether they’re concerned their ex is using it or, frankly, they’ve thought about using it. This stuff hits very close to home. People talk on Facebook groups about it.
You can find them pretty easily on Google. And that basically got us thinking, could this be a real trend? So we started calling family lawyers – people who presumably would have their finger on the pulse. And they said, yep (ph), this is happening enough so that it’s actually changing their practice.
INSKEEP: Changing their practice, Lauren Silverman?
SILVERMAN: Well, what’s different is the evidence that they have to work with. We talked with more than two dozen lawyers and digital forensics investigators. And they said clients are often talking about wanting to spy or worry that they’ve been spied on. But the bulk of the spying is pretty subtle – maybe a husband who uses that Find My iPhone feature to see if his wife is actually at the gym, where she says she is. We talked to a lawyer in Dallas, Rick Robertson, and he says clients are using digital tools they already have.
RICK ROBERTSON: I’ve had clients who came in and say, I left my iPad in my husband’s car and I found out all this stuff. So technically, they’re using tracking technology. It’s just not necessarily something illegal.
SILVERMAN: And when you think about it, Steve, a lot of parents are using apps to monitor their kids to try and keep them safe online. If you stop trusting your romantic partner, you can use those same tools on him or her.
INSKEEP: Well, Aarti, at what point does this become illegal?
SHAHANI: OK. So we’re not going to give legal advice. But, in general, there are two things you have to ask. One, are you intercepting communication illegally? That means eavesdropping or wiretapping. And then, separately, whose property are you monitoring? Is it yours or someone else’s? What courts have found is when a couple jointly owns a car, either person can have a GPS tracker in it and arguably that’s legal. But with smartphones, it’s different. Even if you paid for the phone, it’s considered such an intimate device it belongs to the person who’s using it.
INSKEEP: OK. So putting spyware on somebody else’s phone – anybody else’s phone, even your spouse, that’s going across the line?
SILVERMAN: Probably. But you can use digital tracking technology legitimately to monitor kids or employees. And that’s exactly how spyware makers market the technology. What becomes dicey territory is, as you said, when you use it on an intimate partner. For example, in the case of one person I interviewed, he found spyware on his home computer which his ex-wife admitted to putting there. And he’s angry at the people who make spyware. He says, hey, you say it’s for monitoring kids and employees, but, in reality, exes are using it in breakups.
SHAHANI: And I do want to note, NPR reached out to spyware makers who say exactly as Lauren mentioned, it’s for kids and employees and using it on partners is illegal. But, you know, they’re still creating a product that’s completely hidden by design. There’s not some little red icon letting the person know, hey, this thing is on, and you’re being watched.
INSKEEP: Well, if it’s illegal to use this product in a certain way, could you actually get prosecuted for doing it?
SILVERMAN: What we learned is that it’s really unlikely that local police are going to go so far as to actually run a spyware detection program for that. You generally have to pay a digital investigator, and that can cost thousands of dollars. So it’s just cheaper to throw out your device or to wipe it, even though by doing that you get rid of the evidence that could be used in court, which is exactly what the people Aarti and I interviewed did.
INSKEEP: Wait a minute. In order to protect themselves going forward, they destroyed anything they could use to get justice for the past?
SHAHANI: Exactly. And, you know, just the other thing to note is that even when there is evidence, judges and prosecutors have a hard time figuring out how to deal with it, OK? So they know what burglary looks like but hacking – not so much. So, Steve, this trend of surveillance and divorce – it becomes yet another visceral example of the law can’t keep up with technology.
INSKEEP: NPR’s Aarti Shahani and KERA’S Lauren Silverman. Thanks, guys.
SILVERMAN: Thank you.
INSKEEP: And you can visit npr.org/alltech to check out their series and read up on how to get help if you think you may be a victim.
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