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To Catch a Cheating Spouse

By Jason K Jensen, Private Investigator

If you believe your spouse is cheating on you, how do you confirm or refute your suspicions?  Utah Private Investigator Jason K. Jensen shares his experience and some very useful tips below.

A.    Signs of a Cheater.

Cheating goes up when times get tough.  Fighting at home over finances tends to drive couples apart more than it draws them closer.  So do you wonder whether your spouse is a cheater?  There are ways to find out.

First, here are some tell-tale signs:

1.      Alleged change of work schedule.  He/she allegedly is held up at work later and later, increasingly he/she has to return to the office.  However, there is no increased income or the spouse doesn’t complain about having to stay late or return.

2.      Increase phone/text/computer activity.   He/she always seems to be on the telephone or computer, but not with you.  Frequently, you find the phone or computer history is deleted or passwords are changed to prevent you from discovering the activity.

3.      Increased avoidance of spouse or family.  He/she misses family functions that were once important.  Heavy traffic or other excuses become more frequent.

4.      Increased secrecy.  He/she avoids detailing daily activities.  As mentioned above, passwords are changed and information is deleted or omitted.

5.      An unexplained new look.  He/she is trying new hair styles or new clothes.  For instance, once tight with money, he/she now shops more often, and shops alone for himself/herself.

6.      New under garments.   The old underwear or granny-panties are gone.  Briefs may be traded for boxers, or lace and colors are now in.  However, these changes are claimed to be for spicing up your own love-life without an actual corresponding increase or effort.

7.      Increased incidents of hostility.  He/she seems increasingly angry at you.  Once tolerant of your faults, he/she frequently now points out your many mistakes, and blames you for his/her unhappiness.  In addition, cheaters don’t trust.  If he/she is accusing you of cheating, it’s probably because he/she is cheating.  It’s human nature to normalize deviant behavior.  Cheaters think “everyone is doing it.”

8.      Division of previously joint money.  You used to be responsible for the household bills or there was a team effort previously.  Now he/she wants to divide the finances into “his” and “her” debts.  But despite the change he/she neglects his/her own bills.  At times, one member of the couple may suggest that the two should divide household expenses between them like “roommates.”

9.      New habits or hobbies.  He/she is now into new activities or sports where there was no interest before.  However, you are not invited to come along or join the fun.

10.  New gym membership.  He/she has lost a lot of weight.  He/she wants to look good, but it appears it’s not for you to admire.  Again, no increase in sex or effort.

You may have noticed that change in sex or sex-drive was not listed as a sign of a cheating spouse.  That is because cheaters will frequently avoid detection of their extra-marital relationship by still engaging in intercourse with a spouse while carrying on an extramarital affair.  Having multiple sex partners is the primary cause of the increase in guilt and increased hostility described in paragraph 7, above.  When sex ends, that is not a sign of a new paramour (the extra-marital boyfriend or girlfriend), that is a sign that the marriage is over.

If you are alarmed by noticing a significant number of these signs of cheating occurring in your marriage, you may have a problem on your hands.  Now that you fear he/she is cheating on you, what can you do about it?

There are two professionals from whom you can seek help.  Depending on whether you want to end the marriage or salvage it, you can meet with your pastor or other religious leader(s), a marriage counselor, or a divorce attorney.

Some people may want to confirm that his/her spouse is cheating, but feel suspicions are not enough.  If you are proceeding with a divorce action, your attorney may want corroborating evidence of adultery.  Some religions require you to demonstrate adultery as the basis for a divorce to maintain your good standing in the church.

You can attempt to conduct your own investigation, or you can hire a private investigator.  From experience, I would caution you against taking matters into your own hands.  Many spouses who were caught spying become victims of domestic violence, or are hit with protective orders or stalking injunctions.  Private investigators are professionals of discreet investigations.

There are two approaches to catching a cheater:  Technology and/or surveillance.

B.     Technology.

Computers and cell phones are the means in which cheaters maintain contact with their paramours. With or without a private investigator, there are ways to catch a cheater using the computer or cell phone.  Inexpensive devices or software can be obtained to turn your computer or a cell-phone into a snitch.  However, use them for short periods of time or you will be discovered, eventually.

Cell phone SIM card reader.   Cheaters text SMS messages a lot.  Just as soon as messages are sent or received they are deleted.  A simple way to view deleted SMS messages (“text messages”) is with a SIM card reader.  These are SIM card recovery devices.  Many times SIM card readers can recover up to 10 deleted text messages.  The process is not always guaranteed and they are not compatible with every device.  Even the same phone device model with back-to-back serial numbers doesn’t always work.  It can work with one phone but not the next.

Computer keyboard keylogger.¹ A computer keyboard keylogger is a device that can be easily installed onto the back of your computer.  Either it is a flash-drive device or your keyboard cable is plugged into it and the device is plugged into the CPU.  The keylogger device records keystroke for keystroke detailing where someone surfs on-line, what their passwords are, and yes, even what messages are being typed.

There is also keylogger software that can be installed on a computer, but among the problems with software are 1) I personally don’t trust what other spyware services the writer of the program may use the program for (viruses, sales, access to personal identity, etc.).  What I like about the device is that it is easily removed from the computer leaving no trace.  The program stays on the computer drive, unless uninstalled.  Still, since it is easily discovered by inspecting the back of the computer, prolonged use of a keylogger is risky in and of itself.

All you have to do is remove the card for a few moments while they have the device read the information.  Then the card goes back into the phone.  The trick is getting access to the phone.  Cheaters never let the phone out of their sight.  If it’s a business phone, I wouldn’t encourage using a SIM card reader for such a phone because while you may have access, you have no right to control it, and that could lead to a possible criminal charge of or of misappropriation or control.

IMPORTANT WARNING FROM UTAH FAMILY LAW, LC: Before you run out to buy a keylogger or SIM card reader, take SPECIAL NOTE—BY USING KEYLOGGERS OR SIM CARD READERS YOU COULD EXPOSE YOURSELF TO CRIMINAL PROSECUTION.  THERE IS NO UTAH STATE COURT CASE¹ THAT UTAH FAMILY LAW, LC IS AWARE OF IN WHICH USE OF A KEYLOGGER WAS CONSTRUED AS A VIOLATION OF STATE LAW (OR OF FEDERAL LAW, FOR THAT MATTER), BUT THAT DOES NOT MEAN THAT A STATE OR COUNTY OR FEDERAL PROSECUTOR COULD NOT OR WOULD NOT CHARGE A PERSON WHO USES A KEYLOGGER OR SIM CARD READER WITH COMMITTING A CRIME.  IF YOU OPT TO USE A KEYLOGGER OR SIM CARD READER YOURSELF, NOTE THAT YOU DO SO AT YOUR OWN RISK.

Covert video monitor.  Hidden cameras (also known as nanny cams, spy cameras, or pinhole cameras) can be a good tool to bust a cheater.  Video equipment can be purchased in stuffed animals, wall clocks, smoke detectors, table plants, and many others.  You can point the video towards the computer or leave the device running in the family car.  The recording can yield video of a taboo conversation or catch them video conferencing on the computer.  No guarantees though, and what if you are caught covertly video recording, that’s a whole different kettle of fish.

IMPORTANT WARNING FROM UTAH FAMILY LAW, LC: Before you run out to buy that spy camera, take SPECIAL NOTE:  COVERT VIDEO RECORDINGS OF YOUR SPOUSE COULD CONSTITUTE AN ACTIONABLE INVASION OF PRIVACY THAT COULD EXPOSE YOU TO CIVIL AND/OR CRIMINAL PROSECUTION.  IF YOU OPT TO MAKE COVERT VIDEO RECORDINGS OF YOUR SPOUSE, NOTE THAT YOU DO SO AT YOUR OWN RISK.

GPS Tracking.  GPS tracking loggers and real-time GPS devices are available everywhere.  Many cell phones even have built-in GPS.  Devices can be placed on vehicles or in bags, and later reviewed to identify places where a cheating spouse travels. Utah law allows a spouse to track his/her spouse with a mobile tracking device under certain conditions.  See Utah Code § 77-23a-15.5.   Mobile tracking device authorization:

(1) As used in this section, “mobile tracking device” means an electronic or mechanical device emitting only an electronic locator signal which permits the tracking of the movement of a person or an object.

* * * * *

(8) This part does not prohibit any person, whether or not the person is an investigative or law enforcement officer as defined in Subsection 77-23a-3(11), from installing and using a mobile tracking device upon or with property belonging to and under the lawful dominion and control of that person.

C.     Private Investigator Surveillance.

You may want to hire a private investigator in order to avoid having your spouse detect your own surveillance efforts.  An experienced private investigator will know best which devices to use, when to use them, or where to place them to avoid discovery.  Whether you want answers to support or dispel your suspicions, to collect evidence for your attorney, or because you want confirmation to give you peace of mind, hiring a P.I. to gather the evidence makes sense. Who knows, maybe you’re just paranoid and he/she isn’t cheating at all.  Once I had a client who was caught cheating in the past.  In the 1990s he was caught with a co-worker.  Instead of divorce, his wife reconciled for the sake of the children.  But he was always vigilant of her actions attempting to catch her cheating – he probably needed to clear his own guilty conscience.  He hired me several times hoping to catch her.  I never did  observe her doing anything wrong.

A private investigator will usually offer you photographic or video evidence of the spouse’s activity when he/she is involved with the opposite sex, particularly if the conduct is inappropriate.  Reports and detailed activities logs can also be requested of the private investigator for use by your attorney in court, if need be.

Jason K Jensen is a private investigator licensed in the State of Utah (License # G101978).  He has owned his own detective agency, Jensen Investigations (License # P101979) since 2007.  Before being a private investigator he was employed as a paralegal for 13 years working for an attorney in the Salt Lake City Area, specializing in domestic relations.  He can be found at www.jensenprivateinvestigations.com.  He offers free consultations.

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¹Regarding the legality of using keyloggers, you may find this article from Wikia.com very interesting:

http://itlaw.wikia.com/wiki/Intercept

Intercept

Edited by Mdscott

Definition

Intercept is defined in the Electronic Communications Privacy Act (ECPA) as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”[1]

As the Ninth Circuit stated in Konop v. Hawaiian Airlines, Inc.[2]:

“Standing alone, this definition would seem to suggest that an individual ‘intercepts’ an electronic communication merely by ‘acquiring’ its contents, regardless of when or under what circumstances the acquisition occurs. Courts, however, have clarified that Congress intended a narrower definition of ‘intercept’ with regard to electronic communications.[3]”

Application to electronic communications

The
Act broadly bars all intentional interception of electronic
communications.[4] The
Act enumerates several exceptions to this prohibition.[5]

1. Law
enforcement
officers are authorized to conduct interceptions pursuant to a court order.

2.  For
ISPs and other service providers,
there
are three exceptions
.

• “necessary
incident” exception[6]
• “consent exception”,[7] and
• “business use”
exception.
[8]

Application to keylogger software

By interpreting the term “intercept” narrowly, the courts have essentially made it impossible to apply the ECPA to keylogger software. As stated in United States v. Steiger,[9]:

“[T]here is only a narrow window during which an E-mail interception may occur — the seconds or milli-seconds before which a newly composed message is saved to any temporary location following a send command. Therefore, unless some type of automatic routing software is used (for example, a duplicate of all of an employee’s messages are automatically sent to the employee’s boss), interception of E-mail within the prohibition of [the ECPA] is virtually impossible.”

To avoid any possible implication of the ECPA, when the FBI in United States v. Scarfo,[10] installed a keystroke logging device on the computer of suspected bookie, it configured the software to cease operations if the modem was being used, thus, preventing interception of messages being transmitted over an interstate computer system. The court said the keylogger software did not violate the ECPA because of its cessation when the modem was being used.

In United States v. Ropp,[11] the court held that the interception of keystroke transmissions from the wire connecting the keyboard to the CPU was not an “electronic communications” under the ECPA, since it occurred before the transmission reached the interstate computer network. The court deemed relevant the fact that the keystrokes of an email are temporarily stored in the computer until the messages is completed; then and only then is the messages transmitted over the network as a complete message. Intercepting the individual keystrokes before they are contained in a completed email message do not fall within the ECPA.

Finally, in O’Brien v. O’Brien,[12] a wife used spyware to see if her husband was cheating on her. The software secretly took snapshots of what appeared on the computer screen, and the frequency of these snapshots allowed [the spyware] to capture and record all chat conversations, instant messages, e-mails sent and received, and the websites visited by the user of the computer.” Applying a Florida state statute, which was patterned after the ECPA, the court held that there was an illegal wiretap “because the particular facts and circumstances . . . reveal that the electronic communications were intercepted contemporaneously with transmission.” Taking regularly spaced “snapshots” of screens makes it unlikely that this conclusion is actually true.

References   Edit

1.  18 U.S.C. §2510(4).

2.  302 F.3d 868, 876 (9th Cir. 2002)(full-text) (citations omitted)

3.  See also O’Brien v. O’Brien, 899 So.2d 1133 (Fla. App. 5th Dist. 2005)(full-text) (“The federal courts have consistently held that electronic communications, in order to be intercepted, must be acquired contemporaneously with transmission and that electronic communications are not intercepted within the meaning of the Federal Wiretap Act if they are not retrieved from storage”); Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 461-62 (5th Cir. 1994)(full-text) (“Critical to the issue before us is the fact that, unlike the definition of ‘wire communication,’ the definition of ‘electronic communication’ does not include electronic storage of such communications. . . . Congress’ use of the word ‘transfer’ in the definition of ‘electronic communication,’ and its omission in that definition of the phrase ‘any electronic storage of such communication’ . . . reflects that Congress did not intend for ‘intercept’ to apply to ‘electronic communications’ when those communications are in ‘electronic storage’”).

4.  18 U.S.C. §2511(1).

5.  Id. §2511(2).

6.  Id. §2511(2)(a)(i) (“It 
shall not be unlawful under this chapter for an . . . electronic
 communication service,
whose facilities are used
in the transmission of a[n] .
. . electronic 
communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service.”).

7.  Id. §2511(2)(d): “It shall not be unlawful under this chapter for a person not acting under color of law to intercept a[n] . . . electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception . . . .”

8.  Id. §2510(5) (“any  device
or apparatus which can be used to intercept a[n] .
. . electronic communication other than—(a)
any telephone or telegraph instrument,
equipment or facility, or any component thereof .
.
.
(ii)
being used by a provider of .
. . electronic communication service in the ordinary course of its business. . . .”).

9.  318 F.3d 1039, 1050 (11th Cir.)(full-text), cert. denied, 538 U.S. 1051 (2003).

10.  180 F.Supp.2d 572 (S.D.N.Y. 2001)(full-text).

11.  347 F.Supp.2d 831 (C.D. Cal. 2004)(full-text).

12.  899 So.2d 1133 (Fla. App. 5th Dist. 2005)(full-text).

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