Cell Phone Monitoring, is it Legal?

There are any number of apps that let you remotely track your phone if you lose it or track your kids – keeping a virtual eye on them. While this may sound appealing to anyone who has ever misplaced a cell phone or worried about a teenager who’s out too late, many of these GPS based tracking apps do a host of other things that are not quite as innocent. Some can quietly forward emails, calls and texts.

The proliferation of cell phone monitoring apps can make one wonder if they are really legal. These apps advertise features like the ability to intercept and read emails and texts, access to the other user’s call history, photo gallery access, browser history, social media posts, record phone calls, and even listen in on conversations. And they promise anyone can access another person’s mobile device, even if they are not particularly tech savvy.

There are so many tracking apps that the U.S. Senate Judiciary Committee asked the Government Accountability Office to look at the claims and marketing practices of 40 tracking apps. Among the findings was that marketing language used to sell the apps often directly contradicted the fine print disclaimers. On the one hand, app manufacturers advertised about how easy it was to track a cheating spouse; but the fine print says not to use the app without proper consent.

It is important to understand that, while it may be legal for a software developer to create and market these cell phone monitoring programs, how you use them may or may not be legal. The Federal Wiretap Statues make it a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given prior consent. In addition, the Computer Fraud and Abuse Act of 1965, makes it a criminal offense to access a computer (tablet or cell phone) without authorization.

Although privacy laws vary by location, for the most part, you must own or pay the bill on any mobile device you want to monitor. Questions can come up when the ownership of the phone is in someone else’s name – parent, spouse or employer. You can legally use cell phone monitoring programs to:

Monitor your children’s phones

Monitor company issued phones given to employees

You do not need to tell your children; it is your duty as a parent to monitor their behavior.

You do need to tell your employees. This is often handled by putting a clause in the employment contract stating that employees may be monitored when using company cell phones and other devices. You should keep in mind that almost everything you do on office equipment can be, and probably is, monitored. Such monitoring is legal and largely unregulated. Unless company policy specifically states otherwise, your employer may listen, watch and read most of your workplace communications. Courts often have found that when employees are using an employer's equipment, their expectation of privacy is limited. However, email communications between an employee and his or her attorney still are privileged, even if the employee is using a company owned computer, as long as the employee is using his or her personal (not company issued) email address.

If you have any questions about tracking or being tracked and would like to discuss your options, please contact the Law Office of Leslie Farber. As a lawyer who has worked with cyber stalking cases, you will be in expert hands.

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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