Know the Laws:
UPDATED January 11, 2017
Below we discuss various ways that an abuser can commit abuse using technology, including cyberstalking, sexting, electronic surveillance, abuse involving nude/sexual images, impersonation and online harassment.
Electronic surveillance is a broad term used to describe when someone watches another person’s actions or monitors a person’s conversations without his/her knowledge or consent by using one or more electronic devices or platforms. In a relationship where there is domestic violence or stalking, an abuser may use recording and surveillance technology to “keep tabs” on you (the victim) by monitoring your whereabouts and conversations. The motive for using electronic surveillance may be to maintain power and control over you, to make it hard for you to have any privacy or a life separate from the abuser, and/or to try to discover (and stop) any plans you may be making to leave the abuser.
Electronic surveillance can be done by misusing cameras, recorders, wiretaps, social media, or email. It can also include the misuse of monitoring software (also known as spyware), which can be installed on a computer, tablet, or a smartphone to secretly monitor the device activity without the user’s knowledge. Spyware can allow the abusive person access to everything on the phone, as well as the ability to intercept and listen in on phone calls. To learn more about spyware, visit the Safety Net’s Toolkit for Survivors or go to our Crimes page to see if there is a specific spyware law in your state.
It depends on whether the person doing the recording is part of the activity or conversation and, if so, if state law then allows that recording. In most circumstances, what is generally referred to as “spying,” meaning someone who is not a part of your personal/private activities or conversations monitoring or records them without your knowledge, is usually illegal. The differences between these two are explained more below.
If the person is part of the activity or conversation:
Many states allow someone to record a phone call or conversation as long as one person (including the person doing the recording) consents to the recording. Other states require that all parties to the communication consent.
For example, if Jane calls Bob, Jane may legally be able to record the conversation without telling Bob under state X’s law, which allows one-party consent for recordings. However, if state Y requires that each person involved in the conversation know about and consent to the recording, Jane will have to first ask Bob if it is OK with him if she records their conversation in order for the recording to be legal. To learn more about the laws in your state, you can check the state-by-state guide of recording laws from the Reporters Committee for Freedom of the Press.
If the person is not part of the activity or conversation:
There are several criminal laws that address the act of listening in on a private conversation, electronically recording a person’s conversation, or videotaping a person’s activities. The names of these laws vary across the country, but they often include wiretap, voyeurism, interception, and other recording laws. When deciding which law(s) may apply to your situation, this may often depend on the circumstances of the surveillance and whether you had a “reasonable expectation of privacy” while the abuser recorded or observed you. Legally, a reasonable expectation of privacy exists when you are in a situation where an average person would expect to not be seen or spied on.* For example, a person in certain public places such as in a football stadium or on a main street may not reasonably have an expectation of privacy, but a person in his/her bedroom or in a public restroom stall generally would.
* See Katz v. United States, 389 U.S. 347 (1967) (noting that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”)
There are various laws that an abuser may be breaking by electronically surveilling someone or by recording someone’s private conversation without their consent.
Some states have specific laws that address the recording of telephone, online, or in-person conversations. If someone who is not a part of your conversation records the conversation without your consent, it may be illegal even if you know that person is listening to you speak. Below, we give general definitions of various types of crimes. To read the specific language of the laws in your state, go to our Crimes page.
Wiretap is a form of electronic surveillance where a person monitors or records telephone communications. Most typically, people think of wiretapping as a way that law enforcement tracks criminals or gets access to incriminating evidence. However, wiretaps are also something that abusers and stalkers have misused to listen in on and record telephone conversations. Many states have laws that criminalize wiretapping. In addition, most state wiretap laws also address whether someone who is part of a conversation is allowed to record that conversation without the permission of others.
Interception occurs when someone who is not part of a conversation uses technology to interfere with the communication so that s/he can overhear or record the conversation. Interception laws usually apply to communication other than telephone conversations, such as email and text messages. Many states may have either an interception law or a wiretap law; so, if you don’t find one in your state, look for the other.
Eavesdropping is the crime of listening in on or recording another person’s private conversation without the consent of one or both of the parties. Eavesdropping can be done in various ways, some of which may not involve complex technology. For example, if you are talking on a landline at home, someone else can pick up another receiver in your home and listen in. If someone wants to record your conversations, this could be done on a basic tape recorder or by using an app or software to monitor and record conversations on your smartphone. Eavesdropping laws generally apply when the parties have a reasonable expectation of privacy.
INVASION OF PRIVACY / VOYEURISM
Invasion of privacy laws can apply to situations where an abuser misuses technology, such as a surveillance device, in order to observe, monitor, or record your personal or private activities. This may include taking nude or partially nude photos or videos without your consent. It can also include when an intimate partner secretly videotapes sexual acts without the consent of his/her partner. Voyeurism refers to the act of spying on someone for sexual pleasure. Voyeurism does not always include videotaping or the use of electronic devices (it may apply to physically spying on someone), but the act of videotaping your sexual activity (or nudity) without your consent and knowledge could fall under the crime of voyeurism if there is no “invasion of privacy” law in your state.