Is It Illegal to Secretly Spy on Someone’s Phone?

Are spy apps legal? In this article we discuss the legality of monitoring someone’s cell phone with surveillance software (also known as spy apps) legal?

The simple answer is yes. But there are several caveats.

The real answer depends on the facts and circumstances. Let’s take a look at the legality of using spyware in the U.S., the U.K., and Canada.

Are Spy Apps Legal in the United States?

In the United States it is illegal to put a spy app on an adult’s (18 years or older) phone without notifying them, even if you are married to that person and you own the phone.

In fact, it is illegal to install monitoring software that can record, track, or forward phone calls, text messages, or social media chats on someone’s phone without their permission. The punishments for illegally using spyware are severe.

Spyware works by sending all of the phone’s data to a server that allows you to view it.  But just because it’s easy to do, doesn’t make it legal.

However, it may be legal to use phone spying software to track the cell phone activity of an employee or a child.

What U.S. Laws Apply to Phone Spy Software

Phone spyware apps are legal when used properly. But when used improperly they fall under U.S. Federal wiretapping laws.

“Wiretapping” originally meant connecting a listening device to someone’s phone and intercepting their conversations. The “wire” in “wiretapping” is in reference to the line used to transmit the telephone call. Laws making this type of behavior illegal were instituted by Congress in the 1960s.

Forms of communication have expanded and so today’s “wiretap” laws include much more than listening to phone calls.

“Wiretapping” today is more accurately described as “eavesdropping.”

As technology like drones, in-home security cameras, and smartphone spy apps came along, these laws were expanded to further protect individuals right to privacy.

The Wiretap Act (18 U.S.C. § 2511) and amended by the Electronic Communications Privacy Act in 1986, is a federal law that makes it illegal to secretly record all of the following: a face-to-face conversation, telephone call, email, text, or “electronic communication” that is “reasonably expected to be private.”

Let’s use a relevant example. If you use cell phone spyware to intercept and read someone’s text messages, when they have a “reasonable expectation of privacy”, without them knowing, you could be found liable under federal wiretap laws.

But…

There are exceptions to this rule.

One-Party Consent Rules

One-Party Consent rules say that you can secretly record someone if at least one person in the conversation consents to the recording.

Essentially private citizens are allowed to record any conversation in which “one of the parties has given prior consent.”

This means that, you can record YOUR conversations with other people, as long as you – being the “one person”—consents to it.

18 U.S.C. § 2511(2)(d) states that it is not unlawful for a private citizen to intercept a wire, oral, or electronic communication “where such person is a party to the communication.”

Therefore, it is not illegal to record yourself having a conversation with someone because, technically, you are a party to the conversation and you have consented to the recording.

On the other hand, “two-party consent” states that you are required you to disclose the fact that you are recording them.

This means that you actually have to take part in the conversation.

So intercepting text messages, phone calls, and GPS location data does NOT qualify for one-party consent unless you TELL the person you are monitoring their phone.

Otherwise it is considered a FELONY under federal wiretap laws.

Using Spy Apps to Intercept Electronic Communications

The Electronic Communications Privacy Act (“ECPA”) of 1986 extended government restrictions on wiretapping from just phone calls to include transmissions of electronic data by computer and other digital devices.

This act also added new provisions prohibiting the interception of stored electronic communications[1] and the use of tracking devices.[2]

ECPA Prohibitions

The ECPA makes it a federal crime to engage in, possess, use, or disclose information illegally obtained through electronic eavesdropping.

This applies to ANYONE who intentionally intercepts, or attempts to intercept electronic communications by using a device or devices unless given consent person targeted.

Punishments for Illegally Using Phone Spy Software

There are several charges you may face if you are caught using phone spy software illegally.

Intent to Wiretap

18 U.S.C. § 2511 of the ECPA, makes it a felony to “intentionally intercept” wire, oral, or electronic communications.

The ECPA also outlaws “endeavoring to intercept” a communication. So even  attempted wiretapping and eavesdropping is considered a crime.

Potential consequences for violating 18 U.S.C. § 2511 for intentional use of wiretapping and eavesdropping equipment or endeavoring to intercept communications include:

• Imprisonment for not more than five years; or
• a fine of not more than $250,000 for individuals
• a fine of not more than $500,000 for organizations

Possession of Unlawful Wiretapping Equipment

18 U.S.C. § 2512 makes it a felony to “manufacture, distribute, possess, [or] advertise” wire, oral, or electronic intercepting devices.

In order to be found guilty of possession of wiretapping equipment, the prosecution must prove that you intentionally manufactured, distributed, possessed, or advertised these types of devices.

Consequences for violating 18 U.S.C. § 2512 for unlawful possession of wiretapping and eavesdropping equipment include:

• Imprisonment for not more than five years; or
• A fine of not more than $250,000 for individuals
• A fine of not more than $500,000 for organizations

Disclosure of Information Obtained by Unlawful Wiretapping

18 U.S.C. § 2511 makes it a felony to use or disclose information obtained through illegal wiretapping or electronic eavesdropping.

So if you are hoping to get evidence against a cheating spouse or partner, be aware that nothing you collect through a spying application would be admissible in court, and could land YOU in court.

Consequences for violating 18 U.S.C. § 2511 for illegal use of information obtained by unlawful wiretapping include:

•         Imprisonment for not more than five years; or
•         a fine of not more than $250,000 for individuals
•         a fine of not more than $500,000 for organizations

Alternative Punishments

• Forfeiture of Your Equipment: 18 U.S.C. § 2520 permits the seizure and forfeiture of any device “used, sent, carried, manufactured, assembled, possessed, sold or advertised” in violation of § 2511 or § 2512.
• Alternative Fine: If there is a monetary loss or gain associated with the offense, 18 U.S.C § 2511(4)(a) permits making an offender pay an alternative fine “not more than twice the amount of the loss or gain.”[6]

You Could Face Both Civil and Criminal Penalties

Charges of wiretapping and eavesdropping can also carry civil liability.

Civil penalties could be brought against you personally by the person accusing you of intercepting their data or recording them without their expressed consent.

Civil penalties are limited to money damages. These would be paid, by you, to your accuser.

So while it can be VERY TEMPTING to buy a spy app and use it one someone’s phone, you should understand the potential legal consequences before doing so.

Spying App Laws in Canada

While Canada does not have laws that specifically target surveillance apps, there are laws on the books regarding personal data.

Canadian consumer privacy and data protection law is governed by the federal Personal Information Protection and Electronic Documents Act (PIPEDA). These laws include several provisions regarding informed consent, notice, and appropriate purposes for using someone’s data.

There are also similar private-sector privacy laws in the provinces of Alberta, British Columbia, and Quebec.

In essence it is illegal to use these apps unless you are using it to monitor:

• your child on a phone that you own
• an employee who has consented to be monitored on a work phone

U.K. Laws Regarding Spy Apps

In the UK it is illegal to use phone or computer spyware on a spouse without their permission. 

There aren’t specific laws related to the use of stalkerware or surveillance apps, but any criminal activity like this can be prosecuted by a number of means including the Protection from Harassment Act 1997.

Is It Legal to Monitor Your Child’s Phone?

If you have concerns about your child, you can legally spy on their phone often without even installing any software.

It is legal to monitor your own child’s phone without their consent. You must be the owner of the phone if you intend to install tracking software on it. 

If your child regularly uses the phone and you know it is also used by an adult, you must take proper precautions to ensure that the adult who uses the phone is notified that you are monitoring it.

Monitoring a child’s phone has several benefits.  For parents, it can help provide assurance that their child is learning good habits about cell phone usage.

It can help save lives of children and prevent child abduction because the parent has a chance to intervene if the parent finds out that his or her child has been talking to adults online.

There are several reasons to limit spying on your child’s phone.  As your child grows older, you want to make sure that you are developing trust that your child will be able to live their own independent life.

Confronting your child about activity on their phone can affect your relationship with them adversely. Some teens may take additional measures to hide their cell phone activity from their parents if they know you are spying on them.

They may switch to other methods of electronic communication such as email while continuing to text “harmlessly”.

Some children may feel that they are not trusted by their family if they are otherwise behaving well but their parents continue to monitor their cell phone usage despite not finding anything to suggest the child is doing anything wrong.

You may consider letting your child know that the phone belongs to you, and that as the owner you have the right to take it away and to monitor any activity on the phone.  This reinforces the idea that owning a cell phone is a privilege.

If your child has earned your trust by being respectful and honest and has obeyed all curfews, you may consider rewarding their behavior by not checking up on them.

Is It Legal to Monitor Your Employee’s Phone?

It is legal to monitor an employee’s phone under certain circumstances.  The company must own the phone, and the employee must be informed that they are being monitored.

Employers might want to monitor the employee’s phone for the protection of the employee and the employer.

For example, if a customer made a complaint that an employee had sent inappropriate text messages to him or her, the employer could refute these claims if it has records of the cell phone activity.

Monitoring an employee’s phone can help save the company money.  When employees know they are being monitored, they may be less likely to waste time or commit unethical or illegal acts while on the clock.

If you choose to monitor employee cell phones, you might also consider providing employees with clear guidance about your expectations.

For example, are you going to allow them to use the internet for personal reasons during breaks, or will this type of activity be strictly prohibited?

Employers should consider providing a written guideline about using cell phones for personal use, including using the phone for a business owned by the employee and not related to work at the job.

There are some circumstances where monitoring an employee’s cell phone activity on a company-owned phone has disadvantages.

An employee who knows they are being monitored may feel that their employer is always watching them and does not trust them. This can be distracting for some employees and can damage morale.

If an employer chooses to monitor phones, it is especially important that they treat all employees fairly by monitoring all phones owned by company employees. Employers should avoid singling out certain individuals.

Is it Legal to Tap, Hack, or Monitor Your Spouse’s Phone?

It is HIGHLY illegal to tap, hack, or spy on your spouse’s phone without their consent.

Many people are tempted to tap their spouse’s phone by using software to track their activity. This often happens if they have noticed unusual behavior recently or are contemplating filing for divorce and want to use any information they find to gain an advantage in court.

If you have already done this, you cannot use any information that you found without their permission in a divorce or custody case.

Because this type of conduct is illegal, an attorney is ethically obligated to avoid helping you incriminate yourself in court. 

If you need to ask yourself the question, is spying on someone’s phone illegal, you might ask yourself why you feel that you need to check up on your spouse or significant other.

Additional Reading===>>  How to Track a Cell Phone Without Software

Confronting them about what you have noticed might be a good first step and can save you from being accused of doing anything illegal to check up on them.

For some couples, monitoring cell phone use can help improve the relationship.

This may be especially true if one spouse has breached the other’s trust.

Knowing what the other spouse is up to can help provide reassurance that the relationship is on the right track.

Is It a Crime to Look Through Someone’s Phone?

According to Federal law a person is not allowed to view, read, or listen to any communication on another person’s phone.  This also applies to other electronic devices (computers etc). 

There are lot’s of examples of spouses facing criminal charges for snooping through their spouse’s phone for proof of an affair or other illicit activity.

Conclusion

If you are going to remotely spy on the cell phone activity of an adult, they must be notified, even if you are the legal owner of the phone. Cell phone monitoring technology should always be used responsibly.

Always take into account not only the legality of monitoring someone else’s phone but also your reasons for wanting to monitor it, how monitoring them could affect the relationship and what steps you plan to take if you find something incriminating on the phone