When a marriage ends, spouses are frequently tempted to snoop on each other in the belief that they can gather damaging information and use it to get the upper hand in divorce proceedings. But for those who live in Missouri, it's not that easy.
Missouri has what's called a "wiretapping law," and it has some similarities to federal wiretapping laws. The purpose of Missouri's law is to protect the rights of citizens while also granting law enforcement a limited right to eavesdrop on potential criminals.
This law applies equally to all citizens, including spouses.
Missouri's wiretapping laws recognize that privacy is one of the most important values in American society. Wiretap laws prevent eavesdropping by prohibiting people from "knowingly intercepting" any "wire communication" by use of any "electronic or mechanical device." But what does all of that mean? It's not as complicated as you might think.
First, "interception" means that someone knowingly or intentionally, or through another person's efforts, succeeded in learning the contents of a wire communication—or made an attempt to do so. The contents of a wire communication are sometimes called "aural communications," which is the same thing as calling them oral communications. It means that they were spoken and were capable of being heard.
People generally believe that when they're talking on a phone, their conversation is private. Accessing those private conversations without consent is the essence of "interception."
Second, the communications have to be transmitted by a "wire." The law defines "wire communication" as any communication made entirely or partially by the use of transmission facilities that use wire, cable, or a similar connection between the point of origin and the point of reception. So, for example, a residential telephone connected to a jack would be included in the law's definition of a "wire," because it relies on wire and a common carrier (meaning, the phone company) for service.
Third, the communications have to be intercepted by an electronic of mechanical device. The law defines an electronic or mechanical device simply as one capable of intercepting a wire communication.
It's important to know that Missouri's wiretapping statute doesn't apply if you're a party to the communication. If you're talking on the phone with your spouse and you tape the call, you haven't illegally intercepted a wire communication. You must still satisfy the other legal requirements, though.
The wiretapping law also doesn't apply if you get the other person's consent. If you're talking to your spouse on the phone, and your spouse agrees that you can tape the conversation, you haven't broken any laws.
No matter how angry you are with your spouse, you should comply with Missouri law. The consequences of breaking the wiretapping law are just too severe to take chances.
First, the wiretapping law creates a civil cause of action against anyone who violates it. This means that if you illegally eavesdrop on your spouse, your spouse can turn around and sue you—and it's no small lawsuit, either. You will be on the hook for "actual damages" (meaning, real money damages that your spouse actually incurred—these are things like doctor bills) of $100 per day for every day of the eavesdropping infraction, or $10,000—whichever is greater. But that's just the actual damages. You will also be liable for punitive damages (money damages that are designed to punish willful or intentional wrongdoing) and also your spouse's reasonable attorney's fees and litigation costs.
Second, even if you manage to dig up some exceptionally juicy dirt on your spouse, you won't be able to admit it into evidence in your divorce proceeding. This means that the judge in your divorce case won't allow you to bring up any of the information you gained through illegal eavesdropping. It won't be admitted into the official court record, and no one will be able to testify about it.
Finally, and most importantly, breaking Missouri's wiretap law is a felony offense that's potentially punishable by prison time.
The Missouri appellate courts have issued several opinions interpreting the wiretap laws. Although some of the cases are quite old, they're still useful because they point to specific circumstances and pieces of equipment and define them as legal or illegal. The cases also help lawyers and the public to understand what kinds of facts the courts are interested in when analyzing wiretapping cases. This helps everyone to predict the outcome of future cases, and also shows citizens which kinds of technology might violate the wiretapping laws.
In 1979, Missouri's appellate courts found that the federal wiretap laws should not be interpreted with a view toward creating an exception for spouses. This decision ultimately became the majority view of America's courts—that wiretapping laws should not be disregarded just because spouses were spying on each other. Thus, there is no domestic exception in Missouri.
This led to a pair of similar decisions in 1998. In the first case, one spouse overheard the other spouse's telephone conversations with a lover by using a scanner that could pick up cell phone calls. The Missouri appellate court ruled that this surveillance was illegal under the wiretap law because although one party to the conversation was using a cell phone (which isn't protected by the plain language of the law), the other party was using a regular phone attached to a jack (which is protected).
In the second decision, the court also had to deal with a spouse who attempted to eavesdrop on the other spouse, this time by means of an answering machine. The court ruled that an answering machine was not an "electronic device" under the wiretap statute—that instead it was a separate electronic device. The court then authorized the wronged spouse to proceed with a lawsuit.
It goes without saying that technology is changing rapidly, and the courts have struggled to keep up. Missouri's courts haven't necessarily issued a ruling on all the different kinds of technology available, but other courts have. Rulings from around the country are beginning to shape the impact of using technology to spy on an estranged spouse.
When it comes to videotaping or video surveillance, Missouri's eavesdropping law does not prohibit this activity. However, Missouri does have strong invasion of privacy laws that do. These are criminal laws that carry serious penalties depending on the transaction.
Email hardly seems like new technology. After all, it's been in common use for a couple of decades. But the courts are struggling with it. In one landmark case from New Jersey, a wife hired a computer company to recover her husband's love messages from his email. The New Jersey court found that the wife didn't violate the New Jersey wiretap laws because wiretap laws are intended to prevent eavesdropping, not protect storage devices. The court concluded that by saving his messages on his computer, the husband treated the computer as a storage device, and therefore he couldn't sue his wife under the wiretap law.
Finally, different courts around the country have considered the question of what to do when one scorned spouse posts damaging information about the other spouse on the internet or social media. Internet postings are similar to wiretapping in that they are damaging to a person's privacy. However, most courts have concluded that the situation can be covered by looking at the First Amendment and defamation laws.