ELECTRONIC SNOOPING – Fertile Hunting Ground or a Minefield?

Over the last several years, family law attorneys have witnessed a substantial increase in the number of cases in which someone has engaged in electronic snooping. Electronic snooping includes a large array of activities, ranging from placing a recording device in a child’s backpack, to placing spyware on a computer, to obtaining unauthorized access to a Facebook page, to accessing information on another person’s cell phone or computer. The law in this area is highly complex. Electronically stored information can be a fertile source of evidence, but can also be a “land mine” for the unsuspecting litigant.

Electronically stored information and electronic communications commonly have a marked impact in modern family law litigation. Obtaining this material is often a matter of key importance to one’s case. However, the practical application of this area of the law to family litigation is that one must utilize extreme caution and seek the advice of an attorney having substantial knowledge in this area before one seriously considers engaging in this type of conduct.

Four commonly encountered groups of statutes and legal rules often apply in this area:

  1. Wiretap Acts (both State and Federal);
  2. Stored Communications Acts (both State and Federal);
  3. Breach of Computer Security (or computer fraud) statutes (both State and Federal); and
  4. Invasion of Privacy Claims.

The “Wiretap Act”

In 1968, Congress passed the federal Wiretap Act. In 1986, Congress amended the statute with the “Electronic Communications Privacy Act” (“ECPA”). Texas has a very similar statute. These statutes prohibit the interception of a wire, oral, or electronic communication. The statutes define each of these terms differently. The definitions are interrelated and very complex. Importantly, this statute also criminalizes not only the act of interception, but also the use of an intercepted communication. In addition, both State and Federal laws create claims for civil damages arising under these statutes.

The statutes make the “interception” of a protected communication without consent a criminal act. Generally speaking, once the intended recipient receives the communication, it is no longer subject to being “intercepted”. For example, if a girlfriend sends a husband an email, then once the email is completely transmitted to husband’s computer and is resident on that computer, then viewing that email on husband’s computer will generally not be considered a violation of the Wiretap statute. However, there are other laws that may be violated.

Examples of conduct that involve a high probability of violating the interception statute include: secreting a recording device in a child’s backpack; placing spyware on a computer or cell phone that immediately forwards all emails or text messages received to another person’s device; placing a wiretap or recording device on a telephone (including an “app” that records cell phone conversations); and installing spyware on a cell phone that enables the “bad actor” to remotely utilize the cell phone as a listening device, without the knowledge or consent of the person whose communications are being intercepted.

The use of an intercepted communication can be a trap not only for litigants, but also for attorneys. Under this provision of the statutes, should a third party intercept the communications between husband and his girlfriend, and wife (knowing that it was an intercepted communication) use the intercepted communication as evidence in a divorce, then wife has potentially committed a serious criminal offense.

All too often, a family law client comes into an attorney’s office believing that she “has the goods” on the other spouse. Within several minutes, however, one determines that the information was intercepted. The information is “toxic”. One cannot use the information and, since destruction of evidence is also a crime, one cannot destroy the information. This creates substantial problems for the party who “snooped”.

The safest course of conduct is to not engage in electronic snooping, except in strict accordance with advice from an attorney who is very knowledgeable in this highly complex area of the law.

Even conduct that does not constitute an interception under the Wiretap Act or the ECPA, may well violate other statutes or rules of law. Please stay tuned for our discussion on the “Stored Communication Acts” and how electronic snooping may violate those laws.

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