The Legal Use of Monitoring Software

By Barbara Applebaum
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Spyware is a type of malicious software. Normally, the user is not aware that an intrusion of spyware has contaminated and compromised their computer. Once in place, the app gathers personal information such as online banking information, user accounts and passwords. Spyware can also record information about computer usage, loaded applications, web browsing habits, email exchanges, record every keyboard stroke and more.

Keylogger software is the most common and malicious form of spyware in existence. Once information is gathered, a cyber-criminal receives an internet-transmitted log of the computer user's activities. The vehicle of transmission is usually the victim's own internet connection. Spyware is the preeminent security threat to users of Microsoft Windows operating systems.

Monitoring software has the same capabilities as spyware. However, three distinctive elements separate the two types of applications. These differences are informed consent, computer ownership and parental stewardship.

In order to install a monitoring application, you must be the owner of the computer or obtain the consent of all the users of the monitored machine. When implementing consent, a well-prepared signed document that clearly outlines and describes the computer monitoring process is not a bad idea.

Parents can legally install the software on their minor child's computer. Covert computer monitoring of a child over the age of eighteen is illegal. Should a parent elect to install the app on an adult child's computer, they must prove they are the verified owner of the machine or obtain the adult child's consent.

When installed on a computer that does not meet the above criteria, monitoring software technically becomes spyware. Spyware is illegal. Its use can result in both civil and criminal penalties.

Employers may implement monitoring applications on all business-owned computers. Monitoring software can identify and circumvent any potential computer problems that might interfere with a workforce's ability to perform their paid tasks.

Most employers grant a reasonable amount of privacy to their employees. Privacy on the job is an area of heated debate. Across the United States, the courts have repeatedly ruled that the employee should have no expectation of privacy in the work place.

In many instances, the employer informs their staff of computer monitoring policies. Some studies demonstrate that informing the employee of computer surveillance may prevent unseemly behavior in the workplace. Nevertheless, secret monitoring of an employee's computer activity is a legal activity.

Clandestine staff surveillance has withstood the legal challenges of many a disgruntled employee. The courts have consistently ruled in the employers' favor. After all, they are the owner of the monitored computer.

Deploying surveillance software in the work place has multiple advantages. This type of application can not only assist with computer maintenance but also assist employers in identifying and documenting employee activities that potentially misuse and exploit company resources, property and time. Additionally, monitoring software can work as a sentry against possible employee lawsuits involving sexual harassment or hostile work environments. However, to be completely safe legally, employers must also take appropriate action when these situations occur. Monitoring is not enough to protect an employer in these instances. 

In the information age, intellectual property is often the most valuable asset a business possesses. Examples of intellectual property include the code behind many software applications, marketing strategies and trade secrets. Computer surveillance in the workplace is an obvious proactive step for most businesses. The failure to protect proprietary digital assets from corporate espionage has been the catalyst of demise for many strong companies.

Monitoring Outside the Workplace

Some individuals may have marital or relationship problems. They may feel compelled to establish and document the cheating behavior of a spouse or partner. Before using a surveillance app for this purpose, it is imperative that the individual fully comprehends all legal and civil liabilities.

In most situations, documenting a spouse's cheating behavior doesn't provide an increased advantage during legal proceedings. Commonly, this type of covert observation backfires and works to the individual's disadvantage. Spouses who attempt to collar an unfaithful spouse in this fashion frequently find themselves on the wrong side of the law. Consequences can take the form of serious legal and civil penalties.

Some users of monitoring apps may argue that they live in a common law state where marital assets, including computers, belong to both spouses equally. On the surface, this is true. However, today, the majority of homes contain more than one computer. Often, each spouse uses one PC exclusively. Multiple court cases exist where the courts have ruled that the monitored spouse did have a reasonable expectation of privacy on their personal computer. The app's installation was an invasion of privacy that transformed a legal software application into spyware. Think carefully and perform comprehensive research before using surveillance software for this purpose.

Monitoring Software Installation

There are two ways to install monitoring software. One requires physical access to the target computer. In this method, the installation process follows industry-accepted standards and requires user interaction. The second method of installation is covert and presents numerous risks to both the person performing the monitoring and the individual using the target computer. In this remote method of installation, the recipient of an email clicks an attachment that stealthily unleashes the monitoring app onto the target computer.

Computer owners, parents and corporations may get more than they bargained for when deploying this method of installation because it has many unknown variables. Legal surveillance apps could quickly transform into illegal spyware during any step of the remote installation process.

An illegal spyware contamination caused the true scenario below. However, given the right conditions, legal applications can easily become spyware.

In 2008, an Ohio man received a felony conviction for intercepting electronic communications. The target of the app installation was at work when she clicked on the man's email attachment. When the zipped file failed to produce a legible document, his victim attributed the problem to a computer error and moved to another machine to read her email.

In a stroke of misfortune for the man, his victim was working when she read her email. In her repeated attempts to read the contents of the attachment, she infected two computers located on the network of a medical facility. 

Shortly after installation, the man received private patient files, nursing notes, indentifying medical information, diagnostic data and other highly confidential information. Also included were screenshots of the infected computers, personal email, and the financial records of four hospital employees. The slowing of the compromised computers led to the discovery of the spyware. Three weeks lapsed, from contamination to detection, before the surreptitious information flow stopped.

The man's intent was to spy only on the recipient of his email, not gather sensitive hospital information. The intended target of the spyware app was the victim's home computer not the children's hospital. When remotely deploying monitoring software, the risk is very high for installing the app on an unintended corporate or a personally owned computer target.

Further legal ramifications may exist for freelance or contract workers. These individuals frequently access multiple networks while working. An unknown installation of surveillance software may expose sensitive customer information. Although accidental, civil and criminal penalties could still result. Individuals concerned about an occurrence of spyware on their machine are encouraged to visit our antispyware software review site or our anti-keylogger software review site to obtain information about blocking and removing the malware.

In summary, the following conditions must exist for the legal installation of monitoring applications.

  • Documented ownership of the targeted computer
  • Parental stewardship of a minor child
  • In instances where the machine is not owned, the consent of all users of the targeted machine is required, preferably in writing.

It is understood that any reader of this article should obtain legal counsel to determine whether to proceed with any technique, service or product mentioned herein. TopTenReviews will not be held responsible for any legal action or other repercussion as a result of this informational article, and it is not to be construed as being exhaustive of all the ramifications of any action taken by any person as a result of reading this article. Users are encouraged to obtain legal information pertinent to their own state of residence prior to instigating any activity of the nature represented in this article.

To obtain more information about legal surveillance applications, please visit our Monitoring Software review site. Spytech SpyAgent, Spector Pro 2010 and eBlaster 2010 our top-rated applications.

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