Convicting sentences on citizens who have ended up in jail for spying on their partner's cell phone are not something new. The most recent, two years in prison for a woman for spying on her husband's cell phone.
However, although many are aware of the ethical implications of this practice, not everyone knows that spying on someone's mobile phone, computer, WhatsApp messages or email account is a crime.
What is a crime is not so much the act of spying, but rather the violation of someone's privacy. Although you may think that the simple fact of accessing someone's mobile or email account, taking a look and nothing else, may seem innocent, it is a particularly serious behavior.
Not only spying on the mobile, but also on social networks or WhatsApp
And it is because privacy itself is a fundamental right, protected in the constitution itself and whose violation is sanctioned in the Penal Code. As in the case of WhatsApp conversations, as we already explained, the fact of accessing conversations in which we are not a participant is punishable by prison terms. It is not a trivial matter.
Although the original draft of the Criminal Code was focused mainly on postal communications (letters, above all), it is also extensible to electronic communications, including those elements that surround the privacy of the person.
Today and with the successive modifications of the Criminal Code and the practices of the courts, there is no such differentiation, but it is applied equally to the entire area that makes up the intimate circle of a person.
Therefore, the Penal Code and especially the article that penalizes the conduct of spying on the mobile makes no distinction between it, letters, WhatsApp or messages from a social network. Article 197 of the Penal Code punishes anyone who, violating the privacy of another, seizes their papers, letters, email messages or any other documents or personal effects, intercepts their telecommunications or uses technical devices for listening, transmission, recording or sound or image reproduction, or any other communication signal.
It is always a crime to access a mobile phone without consent
Therefore, mere access to a third party's mobile phone will always be a crime, as long as not only is the dissemination of its content punished, but also the interception of telecommunications.
As it is written, when spying on another person's mobile phone, this crime is committed by: accessing the communications or the devices of said communications, doing so without the authorization of the affected person and undermining their privacy.
As a general rule, spying on a person's mobile without their consent entails prison sentences of one to four years and a fine of twelve to twenty-four months. But there are certain aggravating factors to take into account.
Especially serious if it is that of the couple
Spanish law provides for especially serious access to another's mobile phone or communications when they occur, without authorization, within the couple.
Here are two aspects to take into account when we talk about spying on the couple's mobile, both related to access to their communications, messages, WhatsApp, etc.
Firstly, because the Penal Code considers it especially serious, and therefore imposes higher penalties, when the acts were committed by the spouse or by a person who is or has been attached to him by a similar affective relationship, even without coexistence. In other words, as a general rule, if the mobile phone or computer spied on is that of the couple, it is more serious due to the affective relationship.
Secondly, because within the couple it can be considered another form of abuse, within the forms of control over the couple. And therefore, spying on the mobile is a conduct that would fall within the assumptions of gender violence.
And when are 'spy' apps used or to break mobile passwords or access a PC?
The Penal Code was reformed in 2015 to, among other things, take into account when use illegitimate methods to access the content of a computer medium without authorization. In this way, article 197 (bis) itself includes two considerations that take into account the circumstances of digital life.
Although they are more focused on cybercrime and criminal organizations to access computer systems, it can also occur when special methods (cracking, malware, etc.) are used to spy on a mobile or PC.
In the first place, the mere violation of the security measures of an electronic or computer system, such as a mobile phone, to access its content without authorization is punished. That is, breaking a password or a firewall, for example.
This modification is especially relevant as it also penalizes mere access, without the need to have accessed the data. Therefore, it punishes the breakage of a computer security system. Using brute force to unlock an iPhone, for example)
The same article also mentions the use of spy apps, punishing any person through the use of artifice or technical instruments, and without being duly authorized, intercept non-public transmissions of computer data
Spy on your mobile with 'cracking' tools
And what's more, since 2015 Spanish law punishes the mere fact of buying or having or giving away spy 'apps' or malicious programs in order to access to a computer system (a mobile, for example). Also to break passwords.
Although as we said, these newsrooms are more focused on the criminal use of tools to violate computer services, they are also applicable when they are used to spy on a mobile or break the security of a PC to access data.
Whether it is done in any way, and using whatever tools, spying on a mobile without consent, especially when it is your partner's, is one of the fastest ways to end up in jail.