San Francisco, CA asked in Domestic Violence for California

Q: My ex husband has a spyware on my electronics that gives him a view of my activity but he edit. Admissible?

my ex husband has been tracking everything i am doing on my phone and laptop. I opened a google voice acct walked away 2days later he had called it. He has deleted emails and activity history. I sure hope I am not crazy the service has my laptop now. He has submitted screen shots and defended himself from things not mentioned in court yet. How is this admissible?

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1 Lawyer Answer
James L. Arrasmith
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Answered

A: Your ex-husband's alleged use of spyware to monitor your electronic devices and edit your data would likely be considered illegal and inadmissible in court. Here are a few relevant points:

1. California Penal Code Section 502 prohibits unauthorized access to computer systems, data, and networks. Installing spyware on your devices without your consent would likely violate this law.

2. California's two-party consent law (California Penal Code Section 632) requires that all parties to a confidential communication give permission for it to be recorded or monitored. If your ex-husband is secretly monitoring your communications, this would likely be a violation.

3. Evidence obtained illegally is generally not admissible in court under the "fruit of the poisonous tree" doctrine. If your ex-husband is submitting screenshots or other information gained through the use of spyware, you can argue that this evidence should be excluded.

4. Editing or deleting your emails and activity history could be considered tampering with evidence, which is also illegal.

To protect your rights, you should:

1. Document any suspicious activity or evidence that suggests your ex-husband is using spyware to monitor your devices.

2. Consult with a family law attorney who can advise you on how to proceed and potentially file a motion to exclude any illegally obtained evidence.

3. Consider reporting the alleged illegal activity to law enforcement.

4. Take steps to secure your devices, such as running anti-malware scans, changing passwords, and enabling two-factor authentication.

Remember, your privacy rights are protected by law, and your ex-husband's alleged actions are likely illegal and inadmissible in court.

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