Can you spy on your husband in New York? Are there any criminal laws against it?
Recently, I was talking to close friend about wives who surveil their husbands. All in an effort to spy on their spouse and catch them cheating. From Jenn, I’ve learned about secret recording devices, fake smoke detectors and cameras disguised as children’s toys. I am a criminal lawyer. And I know about the use of these items by law enforcement. However, this was the first time I thought about people using these devices inside their home.
While these recording devices are sold on Amazon, is their use legal in New York state? There are a few factors to consider in answering that question.
Type of New York Surveillance Device Used
The two types of surveillance devices are:
- Audio recording devices; and
- Video recording devices.
Generally speaking, the laws on audio surveillance are more restrictive than those on video surveillance.
Audio Recording Devices in New York
New York’s Eavesdropping provision is located in the Section 250.05 of the Penal Law. Specifically, it prohibits:
- Wiretapping – intentional overhearing or recording of a telephone conversation without the consent of at least one party on the call.
- Mechanical Overhearing of a Conversation – intentional overhearing or recording of any conversation or discussion without the consent of at least one party on the call.
- Interception or Accessing of the Communication – receiving, collecting, overhearing, or recording of an electronic communication without consent of one party by means of any device.
Therefore, the use of secret audio recording devices is illegal . Unless the recording is done with the consent of at least one of the parties. This charge is a Class “E” felony. Thus it is punishable by up to 4 years in prison.
New York Video Recording Devices
Video surveillance Laws are less restrictive. Nonetheless, it is important to consider whether your video spy plan is lawful.
Location of Video Recording Surveillance Device
The first important thing to consider, is where the cameras will be installed. Because in certain parts of your home individuals have what is called an expectation of privacy. This means that some rooms home are off limits because no one expects to be monitored or watched in there.
New York’s Section 250.40, lists the definitions of terms for unlawful surveillance. Specifically, a place with expectation of privacy means “when a reasonable person would believe that he or she could fully disrobe in privacy.” Two common areas that come to mind are the bathroom and the bedroom.
However, there are no limitations on recording outside of your house. Courts have repeatedly held that there is no expectation of privacy in public places. Like on the sidewalk or the street.
New York’s Unlawful Video Surveillance Laws:
Under New York Law, Unlawful Surveillance Charges are located in Section 250.45 and 250.50. Under, New York Penal Law 250.45(1), unlawful surveillance in the Second Degree has the following elements:
- Intent – either amusement entertainment, or profit, or degradation or abuse of another person;
- Intentional use or installation of a secret device;
- To view or record a person dressing or undressing or to view intimate parts of the person;
- At a place and time where the person has a reasonable expectation of privacy.
Section 250.45 Unlawful Surveillance in the Second Degree is a Class “E” felony. Similarly, under section 250.50, the charge of Unlawful Surveillance in the First Degree has the same elements. However, there is an additional requirement that the person also had a prior conviction for unlawful surveillance in the First or Second Degree in the past 10 years. This charge is a Class “D” felony.
Before you decide to spy on your spouse, think through the legal ramifications. Even if you obtain incriminating video of audio, you may not be allowed to use it in court. That is because illegally obtained evidence can be excluded by the judge. Importantly, consult an experienced divorce or a criminal attorney for further guidance.