Twenty-First Century Tech Gadgetry and Divorce


    The world of James Bond gadgetry is on a collision course with the world of divorce.  It is happening faster than any divorce attorneys could possibly have anticipated and is catching many ill-prepared to deal with clients who are more well “armed” than the aforementioned Mr. Bond or even Jason Bourne.

    The spy shop has become the new first stop for many preparing for what they believe will be nasty divorce and custody litigation.  Much of this shopping, unfortunatelytakes place before meeting with divorce or matrimonial attorneys, who may be able to dissuade the use of some of these gadgets for spying or other questionable, if not illegal conduct.  Clients often, also are failing to avail themselves of real professional in the art of surveillance, who may be able to provide more effective evidence, because of their experience in dealing with these situations.

    In a society where “smart” cellphones which can do remarkable tricks compared to their “dumb” ancestors of only two or three years ago, perhaps attorneys should be doing all they can to better educate themselves that is out there and is it legal or illegal to use evidence gained from such technology.  

    Here is a brief overview of what types of gadgets are readily available and what some courts around the country are saying about the use of these gadgets in divorce and custody proceedings.

    Easily available and for costs that were completely unthought of just a year or two ago, are items such as: cell phone trackers, GPS devices small enough to be hidden in vehicles, small hidden cameras that can placed into items such as children’s toys or worn attached to eyeglasses.   There are also microphones which can record for days and can be sewn into clothing.  Firms like, located in New York City, provide a dizzying array of low-priced gadgets as part of their online catalogue.  A glance at their website reveals items such as an alarm clock with a built-in motion activated hidden camera that will provide over forty hours of high quality video for just over two hundred dollars. Then there is a one hundred dollar spy watch that takes high definition video with its built-in night vision camera.  There are also items known as cellphone “Recons” which, for under two hundred dollars, can monitor any Android phones, Blackberries and even the most recent iPhone to record all text messages sent and received, all emails sent and received as well as logging all incoming and outgoing calls.  For one hundred dollars you can get a pen that will record all audio within a thirty foot radius, works on voice activation and has a long battery life.  The list goes on and on and the technology is truly mind-blowing.

    The law in all states, including Pennsylvania, is fairly unsettled and will need to be rapidly developed. State and Federal Courts are beginning to weigh in. In a recent Minnesota case, a husband, Danny Lee Hormann believed his wife was having an affair.  He became obsessed with trying to catch her.  He installed spying software on her cellphone and the family computer, and installed a GPS tracking device on her car.      Wife thought it was odd that Hormann seemed to always know exactly where she had been. On one occasion, he showed up at a lakeside cabin that Hormann previously had no knowledge of and attacked her acquaintance. Wife eventually took the car to be repaired and the repairman found the hidden GPS device and removed it.

    Hormann was convicted of stalking his wife and found in violation of a Minnesota statute which bars surreptitious electronic monitoring of another individual with a tracking device.  The appeals court upheld the stalking conviction, but tossed out the additional conviction based upon the fact that Husband also owned the car wife was using and therefore, that Court found he had a legal right to place the tracking device on their car.

    A New Jersey (Gloucester County) Superior Court judge came to the same conclusion, but for different reasoning and was upheld by the Appellate division.  In this case a New Jersey wife believed her husband was having an affair, and placed a GPS tracking device in Husband’s car, which they jointly owned.  Husband sued Wife for invasion of privacy. The Judge in that case said that wife did not violate husband’s privacy.  The New Jersey Appellate court stated that the GPS device did nothing that a private investigator would not have been able to accomplish by just normal surveillance of husband, and therefore, husband had no right to an expectation of privacy under those circumstances.

    However, in a 2011 Nebraska case, a mother who placed a listening device in her daughter’s teddy bear, which the child was instructed to bring to all custody visits with her father, was found guilty of violation of the Federal Wiretap Act.  

    In fact, Five of the thirteen U.S. Circuit Courts have found that the Federal Wiretap Act prohibits electronic surveillance of any type within marriage by the other spouse.  So far two have found that the law does not prohibit spying on your spouse.  The others have yet to weigh in.

    As indicated earlier, the current state of the law in Pennsylvania is not completely developed.  The Pennsylvania Wiretap Act applies to emailand text communications.  Specifically, Section 5703 indicates that it is illegal to intercept any...electronic or oral communications.  Use of the contents of what was intercepted is also illegal.  But if these emails, text messages or other social media interactions are stored on a computer or other electronic storage device, and then retrieved, possibly through questionable means , they may still be admitted into evidence.

    In 2012, Pennsylvania amended the discovery rules to deal with electronically stored information, without codifying any existing case law from other jurisdictions that would ban electronically stored evidence which was gained by illegal means. Although, PA. R.C. P 4011, which has stood for the proposition that no discovery would be allowed which was sought in bad faith or would cause unreasonable annoyance, embarrassment, oppression, burden or expenses or is beyond what is permitted by other discovery rules,  or would lead to disclosure of mediation communications or documents, it does not extend any additional protections regarding electronically stored data which would otherwise be admissible.  The explanatory comment makes it clear there was no intention to include any of the Federal jurisprudence that deals with electronically stored data or documents.

    Many of the companies who sell key-logging software, cell phone trackers andstealthy GPS devices advise that sales are soaring.  Research indicates that in 2011, sales of these devices were up almost eighty percent from the previous year.  A February2012 report from the American Academy of Matrimonial Lawyers indicated that ninety-two percent of their members had reported an increase in evidence from text messages, emails, call histories and GPS location information.

    Clearly technology is now changing the landscape of the many divorce and custody actions in Pennsylvania, New Jersey and nationwide.  Where parties once spent thousands of dollars on surveillance, of the type often provided by private investigation firms, many are now choosing cheaper and more easily available technology of the type described in this article.  Divorce and matrimonial attorneys must be prepared to answer questions about the legality of the use of this new technology to the extent they are currently able and ensure their clients understand that the evidence it produces may or may not be useable in their divorce or custody action.

Christian V. Badali is the CEO and Attorney at Law at Badali Solutions LLC.  ( He has practiced family law in Pennsylvania and New Jersey for almost twenty years.