Should You Use an App to Spy on Your Cheating Spouse?

By: Avvo
: November 01, 2016

By Mary Fetzer

Think your spouse is cheating? You don’t need a pricey private investigator to prove it. Divorce attorneys across the nation are seeing an increase in cases that involve inexpensive smartphone apps that enable suspicious spouses to keep tabs on their significant other. The apps work—but are they legal?

Apps that help you spy on your spouse

The Know: This app is an anonymous social network that privately connects people who are involved with (or interested in) the same person. “Our mission,” says founder Aswan Morgan, “is to create a safe community for the exchange of valuable information to help people avoid the wrong relationships, wasted time, and emotional thrashing.”

The Know was created for the dating population, but its tools work in the context of spousal loyalty as well. “The app crowd-sources dating intelligence to enable people to discreetly check if a partner is involved in relationships outside the marriage,” says Morgan.

Trick or Tracker 3.0: This app can be used by up to seven family members at one time. It tracks phones using the geo-location data contained in text messages and updates the location every 15 minutes. Like most “spying apps,” Trick or Tracker 3.0 must be downloaded on both the phone you’re using and the one on which you’re keeping tabs.

Find my iPhone: “The most common method I see in my divorce cases for spying is where the parties have iPhones and one of them does not realize that the Find my iPhone feature is enabled,” says Sean Smallwood, a family attorney in Orlando, Florida. “This little-known setting gives anyone logged into your iCloud account the ability to track the location of your iPhone within a few feet. The feature is designed to help people recover lost or stolen iPhones; however, this technology also serves as a highly accurate tracking device.”

Find my Friends: With this, you’re not just directed to your wandering lover’s last known location—you can find out exactly where that cheater is at any given time, thanks to a real-time automatic tracking and sharing feature.

The tracking data is saved for you to review at your leisure (and for use as evidence, of course). The geo-fencing function notifies you when your suspect strays beyond specific boundaries, and you can take it from there.

Couple Tracker: When you are the one who’s cheating, this is the app you want. Together, you and your spouse agree to allow monitoring of each other’s digital lives: calls, text messaging, social media activity, and GPS location.

Couple Tracker gives the illusion of full disclosure, but it’s easy to manipulate to the cheating spouse's advantage: You each have access to only the first 30 characters of one another’s texts, and GPS locations can only be tracked at 30-minute intervals. Straying spouses can definitely make that work in their favor.

mSpy: For a monthly fee, you can access your significant other’s contacts, calls, texts, voicemails, Skype activity, photos, videos, locations, and browser history. Sound illegal? The mSpy founders say it’s not, as long as the individual under surveillance provides consent. Of course, that’s not something an adulterous spouse is likely to do.

The legality of spy apps

“Spyware that intercepts communication would generally be considered illegal,” says computer forensic consultant Steven Burgess of Burgess Consulting & Forensics. “In most cases, there is going to be a justifiable expectation of privacy and, therefore, spyware would be violating the Electronic Communications Privacy Act.”

Burgess is often called on to investigate after-the-fact occurrences as well as to detect these apps. “There are numerous kinds of spyware, keyloggers, and remote control stuff that can be installed,” he says. “The more legitimate among them say you have to inform the person on whose device you are installing it.”

However, phones and other devices are community property, by default, for married couples almost everywhere. “Looking at what’s on it is generally legal and considered ethical,” explains Burgess. “In other words, what’s been stored there is fair game.”

On the other hand, federal law makes it a crime to look into another person’s online account unless there is a reasonable expectation that their account is shared with you willingly. “Giving you their password and saying it’s okay to look at their stuff is what might support this—a court would have to decide on a case-by-case basis,” says Burgess. “Consent is the key word here.”

Beyond the legal issues…

“It’s important to remember that any app you install that claims to spy on someone generally acts as a keylogger and will send all that information to some server somewhere,” says tech guru Jason Bauman. “This means that you are entrusting your data to a third party, one that sees everything that your spouse does on his/her phone, including accessing your bank and entering credit card information. While the bigger companies won’t steal this information, they do store it in ways that really are not secure, since they have to send it to users.”

One more thing to consider: are you sure you want to give up so much private information to a third-party app company? Last year, the entire database of mSpy was hacked and the financial information, personal photos, and other data of those being “spied on” was released. “That’s a really big risk to take,” says Bauman. “From a security standpoint, installing spyware is a very, very bad idea.”