NJ - Search of child's cell phone by ex-spouse

[dengle]

What is the name of your state? New Jersey

Is it legal for an ex-spouse to search and forward text messages from a cell phone I allow my minor child to use? It is registered to me.

 

[Just Blue]

What is the name of your state? New Jersey

Is it legal for an ex-spouse to search and forward text messages from a cell phone I allow my minor child to use? It is registered to me.

Yes it is...are the text messages yours or your childs? What are the content of the messages?

 

[CdwJava]

What is the name of your state? New Jersey

Is it legal for an ex-spouse to search and forward text messages from a cell phone I allow my minor child to use? It is registered to me.

Is the ex spouse also a parent of the child? If so, then it almost certainly is lawful to do this even in NJ.

- Carl

 

[Ozark_Sophist]

No, it is not legal. It would be a violation of the Federal Electronics Privacy Act.

 

[Zigner]

No, it is not legal. It would be a violation of the Federal Electronics Privacy Act.

And exactly HOW does that apply to a parent searching their child's cell phone?

 

[CdwJava]

No, it is not legal. It would be a violation of the Federal Electronics Privacy Act.

What?!?

Uh ... sorry, Ozark - I do not think so. Maybe if the "child" was an adult or not the legal responsibility of the ex spouse, but if the ex is a parent of the child, you BET they have a right to go through the phone. In fact, they can likely withhold the phone unless the custody order mandates it (and I have seen that sitipulation in a court order).

Forwarding text messages MIGHT be a problem ... maybe. But that might depend on a host of factors not known (who they were from, who they were forwarded to, etc.). That situation might depend more on state law than federal as I doubt the feds are going to even think twice about this kind of thing even if it were to be unlawful to forward the text messages.

- Carl

 

[dengle]

Yes it is...are the text messages yours or your childs? What are the content of the messages?

The ones I definitely know of are mostly from either myself or my current wife to my daughter. simple things. My ex has a big problem with my daughter calling my wife by any nickname other than her first name, thinks it's alienation of affection. But that's another topic.

 

[tranquility]

Actually, I believe Ozark_Sophist is correct. By the wording of the statute, it would be a violation of the law. I don't think a prosecutor would file charges and don't know of one who has in a similar situation, but I believe the technical elements are there.

Which should point out the reason why some people are not keen on talking to the police and why good citizens should use their right to remain silent when a suspect. Say OP can convince some cop to question dad. Dad thinks like Carl and says something along the lines of "Sure I looked. She's my child and I thought she was getting messages from the 45 year old child molestor down the street and was trying to protect her."

Dad just confessed to some key elements of a crime. One which would be difficult to prove without the statement. One which would cost thousands of dollars if the dad were charged by an overzealous prosecutor looking to make a name for himself. Even though I find it hard to believe a jury would convict, there is still a long road to travel to get there.

The law is already in place to make most of us felons for information crimes. (Intellectual property.) It's just not enforced yet. Wait until information zero tolerance. We see children handcuffed and taken to jail for slapping a girl on the butt. (I am thankful they didn't have such zero tolerance in my day--I'd have a record for sure.) And, on and on. I don't want to tirade, I just want to say we have overcriminalized society. Government has more power than it should because of sloppily-written laws which can encompass perfectly reasonable behavior. We're turning from a mala in se to a mala prohibita country where it requires teams of lawyers to steer a legal path.

 

[CdwJava]

One can likely find some statute in state or federal law to articulate an offense in virtually anything someone does. If you look hard enough, some law somewhere is going to kinda fit most any innocuous act. The fact that some statute somewhere might be manipulated or worded just right by an overzealous officer or prosecutor to bring charges does not make it common practice, right, or even remotely probable.

As you say, it's not likely to ever be prosecuted whether dad confessed to what might be key elements or not. I cannot imagine a US Attorney or an FBI agent with that much time to waste investigating a parent who is inspecting their child's cell phone! Especially since if they did try to squeeze that act into a criminal charge, they would likely be run out on a rail.

- Carl

 

[Ozark_Sophist]

What?!?

Uh ... sorry, Ozark - I do not think so. Maybe if the "child" was an adult or not the legal responsibility of the ex spouse, but if the ex is a parent of the child, you BET they have a right to go through the phone. In fact, they can likely withhold the phone unless the custody order mandates it (and I have seen that sitipulation in a court order).

Forwarding text messages MIGHT be a problem ... maybe. But that might depend on a host of factors not known (who they were from, who they were forwarded to, etc.). That situation might depend more on state law than federal as I doubt the feds are going to even think twice about this kind of thing even if it were to be unlawful to forward the text messages.

- Carl

Unauthorized access to stored electronic communication is a federal crime. I could understand looking to make sure nothing was untoward, but forwarding the communication is a violation. Although the feds are unlikely to take the case, OP could and should file a civil complaint with civil penalties.

 

[CdwJava]

Unauthorized access to stored electronic communication is a federal crime. I could understand looking to make sure nothing was untoward, but forwarding the communication is a violation. Although the feds are unlikely to take the case, OP could and should file a civil complaint with civil penalties.

You are assuming that a parent with the legal and moral responsibility over that child is not "authorized". There is ample law on the books that permits a parent to take items from their child where it will not constitute theft and even to physically discipline a child without it rising to assault and battery. I can only assume that a parent with legal custody or responsibility over a child would have the same leeway when it comes to messages on their child's phone.

This is not likely to go anywhere. A court would probably see a civil claim against the ex for exactly what it would likely be - a vindictive and bitter act. If the OP has the money to spend on attorneys to make the claim, well, it's his money. But, depending on what the messages contained and who they were forwarded to (and why), I don't see it accomplishing anything more than enriching the attorney and wasting a court's time.

If one parent is saying nasty things about another parent to their child via text messages, then perhaps that parent ought to cease putting their child in the middle of the mess (and, yes, I have seen that happen - even in the form of leaving voice messages regarding the other parent). If the ex couple is having a spat, I would hope they could leave the kid(s) out of it.

- Carl

 

[Ozark_Sophist]

You are assuming that a parent with the legal and moral responsibility over that child is not "authorized". There is ample law on the books that permits a parent to take items from their child where it will not constitute theft and even to physically discipline a child without it rising to assault and battery. I can only assume that a parent with legal custody or responsibility over a child would have the same leeway when it comes to messages on their child's phone.

This is not likely to go anywhere. A court would probably see a civil claim against the ex for exactly what it would likely be - a vindictive and bitter act. If the OP has the money to spend on attorneys to make the claim, well, it's his money. But, depending on what the messages contained and who they were forwarded to (and why), I don't see it accomplishing anything more than enriching the attorney and wasting a court's time.

If one parent is saying nasty things about another parent to their child via text messages, then perhaps that parent ought to cease putting their child in the middle of the mess (and, yes, I have seen that happen - even in the form of leaving voice messages regarding the other parent). If the ex couple is having a spat, I would hope they could leave the kid(s) out of it.

- Carl

So as a law enforcement officer, you selectively enforce law and discourage people from exercising their civil rights based on your own prejudices. OK.

 

[CdwJava]

So as a law enforcement officer, you selectively enforce law and discourage people from exercising their civil rights based on your own prejudices. OK.

Discretion is always exercised in every decision from the officer on the beat to the District Attorney. There is no conceivable way that every law can be enforced every time - we do not have that large a judicial system, and I doubt you would want to pay for the cost of such a mammoth system.

Additionally, a violation of statutory law (provided one has occurred) is not generally going to be a civil rights issue. People are always free to report what they wish and to take civil action as they wish. The state is likewise free to drop the matter or ignore it as it wishes. In THIS instance, I cannot imagine for the life of me given the limited information thus presented that any federal agency or US Attorney would pursue this matter ... I know that no DA I have ever heard of would waste his time with it. Perhaps NJ law is different than CA law and maybe NJ might desire to pursue the matter under some state law ... I doubt it, but anything is possible.

Since most criminal violations are pursued at the state level and not by the feds, this is a matter that would be reported and handled to local authorities. I would estimate that in 99% of cases, absent some additional information making this a heinous issue, a criminal complaint for a parent accessing their child's cell phone and forwarding text messages is highly unlikely. If that's a violation of the law, I guess I am guilty of the same thing with my son's phone ... so, get on the phone and call the FBI - I'll be waiting for their call.

NOTE: In my state, we are not a strict interpretation state. CA is not a "common law" state.

PC 4 reads:

4. The rule of the common law, that penal statutes are to be
strictly construed, has no application to this Code. All its
provisions are to be construed according to the fair import of their
terms, with a view to effect its objects and to promote justice.

Thus, at least in my state, the intent or meaning of the law should be taken into consideration rather than the strict interpretation of the statute. As I said, perhaps NJ is different.

- Carl