By Jennifer M. Paine
Attorney, Cordell & Cordell
Could you commit a civil or criminal wrong simply by tape recording your spouse’s conversations, copying her e-mails, following her with a camera or doing any of the number of things your friends have suggested or you have seen in movies? Leaving aside my caveat that you should check the laws in your state, here are some common situations in which the federal laws do and do not apply.
The Fight on the Phone:
Your wife calls you in a rampage to complain about the children, your last settlement offer, why you will not pay more child support, the night she thinks she saw you with a girlfriend, your father’s drinking habits, etc., and you record the conversation while it is happening to use as evidence of your wife’s aggressiveness toward you and your family.
Because you are a participant to the conversation, you have not violated the FWA.
The Fling on the Phone:
You secretly record your wife’s telephone conversation with her boyfriend, during which she complains about the children, your last settlement offer, why you will not pay more child support, the night she thinks she saw you with a girlfriend, your father’s drinking habits, etc., and you record the conversation while it is happening to use as evidence of your wife’s infidelity and her aggressiveness toward you and your family.
Because you are not a participant to the conversation and did not obtain the boyfriend’s consent, you have violated the FWA, are liable for damages, costs and attorney fees, and cannot use the recording in court.
The Fling in the Home:
You secretly record your wife’s conversation with her boyfriend in your home, where she and the boyfriend have been residing. You are still a titleholder to the home and enjoy access to the home every weekend to be with your children.
Have you violated the FWA? The federal circuit courts are split. Some circuits, like 5th Circuit and the 2nd Circuit, have read an interspousal immunity exception into the FWA under these circumstances, reasoning that Congress did not intend to intrude into domestic relations cases with the FWA because those cases, including the evidentiary rules applicable to them, are “normally left to the states.” Anonymous v Anonymous, 558 F2d 677 (2d Cir. 1977).
The majority of circuits, however, hold that the plain language of the FWA contains no interspousal immunity exception. According to one circuit, furthermore, “the legislative history of [the FWA], testimony at congressional hearings, and debates on the floor of Congress inescapably lead to the conclusion that [the FWA] establishes a broad prohibition on all private electronic surveillance and that the principal area of congressional concern was electronic surveillance for the purpose of marital litigation.” Heggy v Heggy, 944 F2d 1537 (10th Cir. 1991).
The Flirt on the Hard Drive:
You suspect that your wife is having an affair with someone she met online, so you take your computer hard drive to a computer technician, who retrieves your wife’s AOL saved mail from the hard drive.
The e-mails include e-mails between your wife and her lover. Your wife thought she only saved the e-mails to the AOL server.
You have probably not violated the FWA because your have not intercepted messages. These were post-transmission e-mails. You have probably not violated the SCA, either, because you did not access the AOL facility through which your e-mail service is provided to retrieve your wife’s e-mails.
The Not-So-Friendly Follower:
You suspect that your wife is using the child support you pay to party, so you hire a private investigator to follower her. The investigator takes pictures of her at a party, where she is spending lavishly on drinks with a younger man. The investigator then approaches her, grimacing, and smacks her martini out of her hand, exclaiming “caught ya!”
The FWA and the SCA do not apply, but state stalking and assault and battery laws might. Stalking must be conduct without a legitimate purpose, and most states by statute or case law authorize licensed private investigators to obtain information to be used in a legal proceeding.
However, approaching the subject in a threatening stance and physically attacking her (such as smacking a drink from her hand) is likely assault and battery.
The Key Stroke Tracker/E-mail Hacker:
You suspect that your wife is having an affair online, so you install a free key logger program on the computer in your marital home, where you still reside. The program records every keystroke made on the computer and stores them to a text file on your hard drive.
The program records your wife’s passwords to a secret e-mail account. You sign in to her e-mail account using the passwords and print sordid e-mails that she stored to the account sever.
You have likely not violated the FWA because you have not intercepted an electronic communication contemporaneously with transmission, but you could have violated the SCA because you printed the saved e-mails, without authorization, from the account server, not your computer’s hard drive. Bailey v Bailey, 2008 US Dist LEXIS 8565 (February 6, 2008).
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.