You’re trying to be a good parent. You’ve explained the importance of treating people with respect online as well as face-to-face and the permanence of online comments, photos and videos. And in the spirit of trust but verify, you may occasionally scroll through your kid’s email or Google+ account, or pick up their phone to glance at recent texts. One would think this behavior it protected by law. Surprisingly, wiretap laws don’t have carve outs for parental snooping.
Before diving into the law, allow me to explain in one word why the law and court cases on snooping in the home are so muddled: Divorce. In the cage match that is divorce and custody battles, snooping and taping are as much staples as roundhouse kicks and choke holds. If parents had unfettered access to their children’s communications, they then would have such access to those communications with the opposing parent. Because this is not always in the best interest of the child, courts cannot say as a rule that parental snooping is okay in all instances.
The law actually starts by saying that snooping is not okay. There are both Federal laws and state laws covering wiretapping. For Federal law, we look at the Electronic Communications Privacy Act (ECPA). The ECPA covers both the interception of electronic communications in transit (Title III of the ECPA) and unauthorized access of those communications while in storage (Title II of the ECPA, also known as the Stored Communications Act). Courts have found an expectation of privacy in electronic communications while in transit (Title III), but that expectation diminishes once the transmission is complete and the communication is stored (Title II). What this means is that looking through your kid’s email is going to be looked at more favorably than putting a tap on their phone line and recording calls.
Let’s take a closer look at the Stored Communications Act. It says: 18 USC § 2701 – Unlawful access to stored communications (a) Offense.— Except as provided in subsection (c) of this section whoever—
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.
Putting this into English, you can go to jail for up to 10 years if you intentionally access stored communications where you don’t have the authority to access them or you exceed your authority by accessing them. The question then becomes whether or not parents have the authority under the law to access their children’s stored communications. This is where courts come in.
The United States is a common law country. Common law means that the courts help make law by interpreting the laws written by the legislature. This is why you hear lawyers reciting case names when arguing for their clients. They are arguing what is called case law. The case law on snooping on kids centers on taping phone conversations rather than accessing stored communications, but the court would use the same logic in a stored communications case.
In a 1998 court case Pollock v. Pollock, the court used the concept of vicarious consent to justify the interception of a minor child’s conversation. Recording of conversation is permitted when one of the parties involved consents to the recording. Vicarious consent occurs in this context when a parent consents to wiretapping on behalf of their child and when the parent’s snooping is motivated by the genuine, good faith concern for the child’s welfare. Therefore, if a parent is acting in the best interest of the child, courts should find that snooping is justified and allowable by law because the parent is consenting to their own snooping.
It’s a good thing parents have legal protection via the courts for good faith snooping because a lot of parents do it. A new study from the Digital Future Project finds 70% of parents say they monitor their child’s online activity while on Facebook and other social media sites and 46% have password access to their children’s accounts. The author falls into both camps but not on a regular basis. There’s a balance to be stuck between trust and monitoring. At least now I know I won’t be spending 10 years in jail for doing a bit of looking if I feel it’s in the best interest of my child.