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Keyloggers and Spying on Your Spouse in North Carolina

By: S. Dean Michaux, JD

Are you concerned that your spouse or significant other may be having an affair? Have you thought about using spying software to track their online activity? Before you take that step there are Federal and North Carolina laws that could expose you to both civil and criminal charges.

Before we look at the laws, what is a keylogger and how do they work? Keylogging software secretly records the keystrokes on the computer keyboard and can monitor the sites that users visit. Keyloggers record not only messages but can produce usernames and passwords to any site or account the user visits. This information is saved even if the browsing history is cleared, emails are deleted, or passwords are changed.

Keyloggers can be hardware or software-based applications. Hardware-based keyloggers must be attached to the computer and requires physical contact with the target computer. Hardware-based keyloggers often are not detectable by standard security barriers, like antivirus software. Hardware keyloggers can be incorporated in a USB stick or charger, a wall charger, or a charging cable.

Software keyloggers allow installers to intercept keystrokes, capture screenshots, manipulate microphones, transfer data remotely, and some can self-destruct leaving no trace of installation or that information was collected. Remote keyloggers can be detected but often require specialized anti-malware programs.

Federal Law and Keyloggers

Title I of the Electronic Communications Privacy Act, 18 U.S.C. § 2511(1)(a), states that anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication” may be subject to civil and criminal penalties.
Title II of the Electronic Communications Privacy Act, 18 U.S.C. § 2701(a)(2), states that whoever intentionally “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage” may be subject to civil and criminal penalties.

North Carolina Law and Keyloggers

North Carolina’s Electronic Surveillance Act and other computer-related laws cover most of the same information as the Title I and Title II of the federal Electronic Communications Privacy Act. The North Carolina laws provide for both civil and criminal penalties similar to the federal laws.

N.C.G.C § 15A-286(8) defines electronic communication as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce.” The statute does not cover: (a) any wire or oral communication; (b) any communication made through a tone-only paging device; or (c) any communication from a tracking device.

N.C.G.S. § 15A-287 states that interception and disclosure of electronic communications is prohibited. A person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person: (1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (2) willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when: (a) the device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communications; or (b) the device transmits communications by radio, or interferes with the transmission of such communications; (3) willfully discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through violation of this Article; or (4) willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Article.

Damages Under NC Law

N.C.G.S. § 15A-296 provides recovery of civil damages. Any person whose electronic communication is intercepted, disclosed, or used has a civil cause of action against any person who intercepts, discloses, uses, or procures any other person to intercept, disclose, or use such communications, and is entitled to recover damages. The aggrieved party may collect actual damages, but not less than liquidated damages, computed at the rate of one hundred dollars ($100.00) a day for each day of violation or one thousand dollars ($1,000), whichever is higher. The party may also recover punitive damages, with reasonable attorneys’ fee and other litigation costs reasonably incurred. Good faith reliance on a court order or a representation made by the Attorney General or a district attorney is a complete defense to any civil or criminal action brought under this Article. (1995, c. 407, s. 1.)

Should I use a keylogger if I suspect my spouse/partner is cheating?

Willfully intercepting, by using a keylogger or other interception method, the electronic information of another person could carry civil penalties and/or potentially a felony charge. While it may be tempting to catch your spouse or partner visiting questionable websites, or emailing or chatting a paramour, the long-term effects may not be worth the risk. The information collected by the keylogger may also not be admissible in your case as it was illegally obtained. The criminal record that you could potentially receive and/or loss of funds from a civil action are not worth the limited information that you could acquire from installing a keylogger.