Everything You Need to Know About the ECPA and the Federal Laws on Spousal Spying

US Congress passed the Federal Wiretap Act

In 1968, the US Congress passed the Federal Wiretap Act to ban wiretapping. It did so to stop the abuse of people’s privacy — including by spousal spying — when they used telephone lines.

Back then, the legislators did not foresee that cell phones, text messages, and other wireless communications would soon become the norm. They also could not predict the advent of the Internet and its rapid growth. The spread of electronic messages, voice messages, chat rooms, and bulletin boards was not something they expected.

To embrace the new technologies, the US Congress revised the law in 1986. It passed the Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act. These two federal laws became the Electronic Communications Privacy Act (ECPA) that bans certain types of electronic spying.

Since then, the ECPA has itself gone through many updates to stay up to date with evolving technologies. Read on for more information, but keep in mind that you should also get legal advice from a certified professional. Contact a divorce attorney in Wilmington, NC, to clear up any questions you might have.

Types of Communication Covered Under ECPA

The ECPA applies to many types of exchanges. It covers tapping telephones and intercepting data from cordless phones and pagers. Furthermore, it includes the audio recording or videotaping of private talks. The ECPA also applies to emails, voicemail, live streaming videos, chat logs, and voice over IP.

The Difference Between Interception and Storage

It is vital to explain the difference between interception and storage since it affects the legal penalties.

According to the law, interception means spying on people and taping their active messages and conversations. The recording may be done in audio, video, or text format using electronic, mechanical, or any other devices.

Storage, on the other hand, means storing the audio, video, or text on a CD, on a USB drive, on a computer, or in a cloud.

Penalties Under the ECPA

By ECPA rules, you can’t intercept, use, or disclose electronic or oral communication taped with electronic, mechanical, or other devices. Furthermore, you can’t open stored communications without due permission.

There are stiffer civil and criminal penalties for intercepting communication than for opening stored communications. These penalties could cause your financial ruin.

First of all, the court can force you to pay damages to the victim of such spousal spying. Bear in mind that the penalty amount for the damages can rise with each day of ongoing violation. Also, you will have to pay disciplinary damages if the court thinks it is quite a cruel violation. The court could order you to pay the fees of the victim's attorney as well. What's more, you could face up to five years in prison for violating the ECPA.

Aside from the federal laws, you will also have to deal with the state laws that cover electronic spying.

Getting involved in a planned interception is a Class H felony under Section 15A-287 of the North Carolina General Law. It is also a Class H felony to use the intercepted messages in any way or to disclose them to other people. Unless you get the go-ahead from those involved, you can’t share the information.

If you do, the victim of the spousal spying can sue you for an invasion of privacy under North Carolina’s common law. You will again have to pay the fines.

To get a better idea of North Carolina's legal system, it will help if you meet with a reputable divorce attorney in Wilmington, NC, and get their expert advice.

Frequently Asked Questions About the ECPA

  • Under the ECPA, which telephone calls can I record?

    It depends on where you live. In some states, by law, all the people taking part in a phone call must know if someone is taping them. They should also have agreed to the recording. So, when talking to someone from another state, you can’t legally record the talk without their knowledge. Otherwise, you could be violating that state’s law.


    If you live in North Carolina, recording phone calls is legal if one party knows about and agrees to the taping. You can therefore legally record your phone calls. What you can’t legally do without their knowledge, however, is record the calls that your spouse makes to third parties.  


    Get in touch with a divorce attorney in Wilmington, NC, if you have any doubts regarding this matter.

  • Am I legally in the clear if I read my spouse’s email messages?

    The main thing to consider here is how you got the email messages in the first place. As per the ECPA rules, you can’t purposely intercept or open your spouse’s messages without his or her permission.


    You can end up in hot water for opening their email account with a password you got without their knowledge. In such a case, you don’t have any legal right to read or share their messages. It is not legal, after all, to engage in spousal spying.


    If you open messages you got by mistake or if you open a stored email, it is an accidental interception. That can give you a legal leeway to use the messages as you see fit. You can also share them. That means you can submit the messages as evidence in a court divorce case.


    However, even in the case of accidental messages, the court might decide to weigh the case with other points. Depending on your situation, your spouse could sue you or file criminal charges against you. Rather than risk that, you should talk to an experienced divorce attorney in Wilmington, NC, before using the information in any way.

  • Is it okay if I open my spouse’s email account or read their private chat room discussions? They did give me password access to both, after all.

    If your spouse gave you the email account passwords, perhaps it’s fine for you to intercept or access the messages. According to the courts, a clearly worded consent isn’t necessary in this regard. Then again, the courts always consider the surrounding circumstances of each spousal spying case, and these could be different for you.


    The issue is legally complex and, if you don’t watch out, you could find yourself in violation of the ECPA. So it bears repeating — find a good divorce attorney in Wilmington, NC, before you take any kind of action.

  • Before we separated, my spouse gave me their email password to get an electronic bill. Is it okay if I use the password to see what they are up to these days?

    First of all, you should reflect on what your spouse agreed to when he gave you his password. Did he agree, in so many words, to allow you to open and read his other email messages? Did he knowingly give up his legal right to privacy for this email account?


    To prevent this type of privacy intrusion, the ECPA bans people from opening stored communications without the account holder’s go-ahead. In case they do have permission to open the messages, the ECPA stops them from going beyond their given right.


    So, if your spouse gave you the password for an exact purpose, you can only use it for that purpose. You can't use it for anything else. If you do, you will be in violation of the law and could face financial and criminal penalties.


    As any divorce attorney in Wilmington, NC, can tell you, opening your ex-spouse’s email without their consent amounts to spousal spying.

  • If I tap my spouse’s telephone and record their conversations illegally, can I legally use the information?

    As said before, there is a clear difference between intercepting and opening stored electronic communications.


    Interception, as per the court’s definition, is acquiring the communications as your spouse sends them. To do this, you might wiretap your spouse’s phone and hack their computer to keep an eye on any chat room discussions. Since it is illegal to do so, you can’t use the intercepted information for any purpose. You also can’t share it with other people in any way.


    If you do, the court may deem each such instance as a separate violation. Your spouse could sue you for damages. They could also hold you criminally culpable. In one case, a federal court said that even listening to illegal recordings is a violation of the ECPA.


    Finally, you can’t use the intercepted information as evidence in your divorce. Any divorce attorney in Wilmington, NC, will confirm that.

  • Isn’t it a violation of North Carolina’s criminal law — G.S. 15A-287 — to tape your child’s telephone conversation with your spouse?

    Yes, but you can listen in on the talk using another phone. It is known as the “extension line” exception to the ECPA.  The reasoning here is that if it is a conversation you can hear legally anyway, monitoring it can’t be illegal.


    However, you should be aware that there is no clear-cut agreement on this matter in the federal courts. The court will make its decision based on the situation. And, they could rule against you and find you in violation of the ECPA. In that case, you will need the services of a top divorce attorney in Wilmington, NC.

Preventing Unwanted Intrusions into Your Electronic Privacy

When you go on the Internet, there is always the risk that you might be laying yourself open to surveillance. Certain private individuals, for reasons of their own, can spend money and time on stalking other people. There are others that engage in spousal spying. While avoiding them entirely may not be possible, you can set up stumbling blocks for those that are less tech-savvy. These blocks can stop such intruders from hacking their way into your computer.

First of all, you can put in firewall software to stop the hackers from opening and scanning your computer when you are online. It will also help to install password protection; this is available on all email programs. Furthermore, consider installing encryption software. It will let you send and store electronic messages in a format that remains unreadable to third parties without the decryption software. The hackers thus won’t be able to read your messages.

Even with all the precautions, if you fall prey to an ECPA violation, you can file a lawsuit for injunctive relief. The court will then order the intruder to stay away from you. Depending on the situation, the court could also award you actual and disciplinary damages as well as attorney fees.

In North Carolina, civil law allows you to file criminal charges against the intruder. You can sue for an invasion of privacy as well.

As you see, the ECPA gives you plenty of legal options to keep you safe from online spying as well as spousal spying. If you need any legal help, hire a divorce attorney in Wilmington, NC, and get professional advice.

Learn how to respond to spousal spying

Taking The Next Step

If you are wondering how long the divorce process is going to take or how much the trial will cost you, please do not hesitate to schedule a consultation at our Wilmington Office. Our office is located at 1015 Ashes Drive, Suite 104, Wilmington. We can help you map out the details of your divorce, giving you a powerful defense. Please call to schedule a consultation.
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