Monday, November 7, 2011

Divorce, Spyware, and Wiretaps, oh my!

Well, it happened again. A Tennessee woman used "spyware" to investigate her husband's online activities. The court says that it allowed her "to intercept his incoming and outgoing e-mail and to monitor his activities on the internet" and ultimately denied wife's 12(b)(6) and summary judgment motions on the issue of a Wiretap Act violation.

The short opinion released by the court in Klumb v. Goan, 2011 U.S. Dist. LEXIS 127880 (E.D. Tenn. 2011), leaves much to be desired with regard to the facts of the case. However, based on what the court says, it seems as if the function that allowed her to "intercept" e-mail was either a keylogger or just a saved password. Here's what the plaintiff alleged:

"[He] first developed suspicions about Goan's installation of unauthorized internet spy software in November 2007 when he compared hard copies of his original email communications to an email recipient to later emails to that same recipient, and discovered that the original email communications had been intercepted, tampered with, and resent to the original recipient by Goan."
It seems to me like this was probably a Gmail account or something similar where it shows the entire e-mail conversation together. She obviously forwarded all of the e-mails to her own account, leaving the forwarded e-mails connected (since Gmail doesn't easily let you delete a specific e-mail without deleting the entire conversation).

You may be wondering why all of this matters. The point is that if she logged into his e-mail account and forwarded e-mails to her own account, there was no interception and also no wiretap. This may bring in the Councilman (United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) (en banc)) debate as to whether the information is "transitory." However, assuming that the e-mails had already been checked, that is not the case.

Some courts have found that spyware can violate the Wiretap Act because the window of transmission is a matter of seconds (or less) and surely Congress intended it to cover more. See, e.g., O'Brien v. O'Brien, 899 So.2d 1133 (Fla. Dist. Ct. App. 2005). It just seems like since the spyware cannot intercept transmissions, it should not make someone guilty of intercepting transmissions.

This may be a violation of the Stored Communications Act. It may also fall under computer trespass statutes. But it doesn't seem to be a wiretap. And if you're wondering why I'm splitting hairs over a microsecond, the reason is exclusion. If it was improperly obtained via wiretap, it is inadmissible. But if it was received through stored communications, the information might be admissible by the court.

For another good divorce case involving the SCA (and no wiretapping claim), be sure to read Jennings v. Jennings, 697 S.E.2d 671 (S.C. Ct. App. 2010).

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