Some of the areas to be explored in this article include recording telephone calls, recording secret video, hiring a private investigator, placing a GPS on someone’s car, and looking at someone’s email or hacking into their computer. The bottom line is- proceed with extreme caution, as there are numerous potential pitfalls in this ever changing area of the law and you certainly don’t want to have a case named after you.
NC Statutes on Invasion of Privacy
Federal Statutes on Invasion of Privacy
Is recording a phone call in NC legal?
North Carolina is a one-party consent State meaning it is legal to record a phone call with another person if both parties are in NC. That being said if the other person is in another State you could be violating the law of the other State. See N.C.G.S. 15A-287.
Is using a GPS legal in NC?
This is a gray area of the law to be sure and likely depends on the exact situation. The safe answer is do not use GPS to track someone. That being said the answer may depend on whether the GPS is placed on a car your own or a person. Another consideration is even if your name is not on the title to a vehicle do you have a marital interest in the vehicle. There may be limited exceptions for a parent to track a child or for a private investigator to track a vehicle when there is no Domestic Violence Protective Order in place. See N.C.G.S. 14-196.3 (New statute as of December 2015)
HSG, LLC v. Edge-Works Manuf. Co, 205 NCBC 87 (October 5, 2015)
In this case one party claimed the other “meddled with his personal vehicle by attaching a GPS tracking device to it.” The North Carolina Business Court held that attaching the GPS was not the Tort of Invasion of Privacy. It is important to note this case predates N.C.G.S 14-196.3.
Is hiring a PI to spy on my spouse legal in NC?
A private investigator can be used in various ways many of which are certainly legal and some which certainly are not legal.
Kennedy v. Morgan, 221 NC App. 219 (June 5, 2012)
Husband hired a Private Investigator for surveillance of his wife. This Court found this act alone did not support a conclusion of law to constitute domestic violence.
Can I leave a recording device in my house to catch my spouse?
Simply leaving a running audio tape recorder in your house to record your spouse violates the NC Electronic Surveillance Act. Having a running audio tape recorder in your pocket during a conversation with your spouse does not appear to be a violation if you a party to the conversation. Be aware there is actually a major distinction between recording audio and video as recording video does not appear to be covered by the NC Electronic Surveillance Act. A Nanny Cam may fall under this exception in addition to a possible "vicarious consent" exception to protect children. See N.C.G.S. §15A-287.
Kroh v. Kroh, 152 N.C. App. 357, No. COA01-1027 (Aug 20, 2002)
The NC Electronic Surveillance Act prohibits one spouse recording the other, even inside the family home. Doing so violates the NC Electronic Surveillance Act and the Omnibus Act. Videotaping does not violate the Act unless there is also auditory recording. The court does adopt the vicarious consent doctrine, permitting non consensual recording to protect the welfare of the child.
Is Spyware legal in NC?
Most forms of computer or phone spyware violate some State or Federal law.
Hassell v. Hassell, 775 S.E. 2d 695 (June 15, 2016)
Husband installed spyware on a phone given to the child. Based upon the specific facts of the case the Court found Wife felt and was harassed by Husband.
Can I hack into someone’s email in NC?
Hacking into someone’s email is almost certainly not lawful. That being said, emails obtained without hacking that have been downloaded on a computer may be fair game.
Evans v. Evans, 169 N.C. App. 358, 610 S.E. 2d 264 (2005)
Emails were not illegally intercepted when they were downloaded and stored on the family computer. Interception was not contemporaneous with transmission. Defendant did not preserve the argument as to insufficient foundation. Trial court did not commit error in allowing the emails into evidence.
Williamson v. Williamson, 217 N.C. App. 388, 719 S.E. 2d 695 (2011)
Emails were excluded from evidence as illegally obtained in violation of Wife’s privacy interest when Husband obtained them from her password protected email account. Appeals court did not specifically rule on that issue, saying that even if the exclusion was error, there was no showing that the exclusion was prejudicial.
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113, 20 I.E.R. Cas. (BNA) 1207, 149 Lab. Cas. (CCH) ¶59803 (3d Cir. 2003), as amended, (Jan. 20, 2004)
Once emails are read and permanently stored on a computer, they are no longer protected by the Electronic Communications Privacy Act.
Is illegally obtained evidence admissible in NC?
Just because it may be criminal to place a GPS unit in someone's bag does not necessarily mean that the evidence is inadmissible. In fact some Federal cases say the evidence is admissible as long as the attorney did not have a role in illegally obtaining the evidence. As discussed above this area of the law is constantly evolving and open to interpretation by the specific facts in your case. Another concern is that using illegally obtained evidence could open one up to civil liability.