High Tech has added an arsenal of technical gear to spy on a spouse suspected of adultery, from GPS tracking of cars and cell phones to video recording and computer spyware. These advances in technology bring up the important issue of the legality and advisability of such spying.

While it may be tempting to use such techniques, or even something as apparently innocuous as logging onto a spouse’s computer to review their Internet history, there are serious legal ramifications since such activity is, generally, illegal in itself. According to Federal law, 18 U.S.C. § 1030, it is a crime to access someone’s computer without authorization, and that includes spouses and children over 18 years of age (parents do have the right to access their underaged children’s computers). Since cell phones are effectively small computers, the law can be extended to include accessing the history of someone’s phone calls, although that is not expressly defined. While this has not been interpreted by Massachusetts court in a divorce setting, the Federal law takes precedence, and someone who spies on a spouse in this manner is violating the law.

Another new technology, GPS tracking, can be used to place a tracker on a spouse’s care, but this may be considered stalking, and in Massachusetts following another person three or more times can be considered stalking. Other states have implemented laws regarding stalking via GPS tracking, and Massachusetts may follow suit.

Massachusetts law defines a right of privacy, defined in G.L. c.214 § 1B. Although the right is privacy is enforced through civil, nto criminal, proceedings, it nonetheless should give one pause before spying on a spouse. Indeed, judges do not want to reward illegal activity of any kind, and such spying may backfire on the spy rather than the one spied upon, denying the admission of any evidence found by illegal surveillance.