Tennessee district court awards man $20,000 in wiretap violation suit against his ex-wife

In November, I wrote a post about the Tennessee case of Klumb v. Goan, involving a man suing his ex-wife under the federal Wiretap Act after she installed spyware on his computers. Last week, a federal district court ruled in favor of the husband, awarding him $10,000 in statutory damages and $10,000 in punitive damages. Klumb v. Goan, 2012 U.S. Dist. LEXIS 100836 (E.D. Tenn. 2012).

Prior to the marriage, the soon-to-be wife purchased eBlaster, a common spyware application. The program records all keystrokes and websites visited, takes screenshots, and sends all of that data to a designated e-mail address. It also intercepts all incoming e-mails and forwards them to the designated e-mail address. Shortly after the marriage began, the wife installed eBlaster on the husband's work computer.

Some time later, while the husband was in rehab, the office administrator discovered what the wife had done after she attempted to print an e-mail she had intercepted using eBlaster. When the husband returned from rehab, the administrator notified him about the software and the wife having tried to print the e-mail. (Via a subpoena duces tecum, the husband later received a copy of all eBlaster reports received by the wife.)

The couple separated, and it was at that time that the husband discovered that the couple's prenup (designed to protect his interest in the family business), which had been drafted by the wife (an attorney), had inserted a null and void clause for adultery into her copy of the prenup, though his copy - they one they went through line by line - did not contain the clause.

While going through the e-mails on the computer and comparing them to those intercepted by the wife, it was determined that several of them had multiple versions. Ultimately, the court held that evidence showed the wife had modified the e-mails to add language so that it appeared he was having an affair. It was also discovered that a document that the wife sought to enter as a modification to the prenup (giving her 75% of assets in the event of the husband's infidelity), had also had two versions. After the husband signed one, she inserted a substitution page with the infidelity clause without his knowledge.

At trial, the wife argued that no wiretap had occurred because eBlaster did not "intercept" the communications. However, the court applied the "router switching analysis," finding that "a wiretap occurs when spyware automatically routes a copy of an email, which is sent through the internet, back through the internet to a third party's email address when the intended recipient opens the email for the first time." The court found "ample evidence" to show that a wiretap had occurred.

The wife also argued that she had consent because (1) the couple had agreed to monitor their son's computer usage, and (2) the software would prevent the leak of trade secrets to competitors. However, the court did not buy this argument for multiple reasons, including the fact that when the husband learned of the eBlaster usage and confronted his wife, she denied having knowledge of the software's existence.

As such, the court ordered statutory damages of $10,000, punitive damages of $10,000, and attorney's fees and costs.