Suspicious Minds: The Legal and Non-Legal Costs of Surveillance in Domestic Cases

By Jennifer M. Paine

Attorney, Cordell & Cordell

Note: This is part 1 of a three-part series on surveillance in domestic cases. Click here to read part 2 and click here to read part 3.

divorce evidence

She trounced into the courtroom with an armful of my client’s text messages and e-mails, a briefcase housing a secret video of him kissing his girlfriend swaying with her pointed steps.

This was the kind of case I knew would be difficult from the outset. Try as I might to keep the judge from getting bogged down in the battle over who was more at fault for the marriage’s breakdown (which is usually irrelevant to divorce proceedings, anyhow), opposing counsel in this case wanted to rehash every discord that ever erupted in this 20-year marriage.

To a certain extent, over my objections, the judge let her – I suppose in a half-pitying gesture to let her client have the proverbial “day in court” and/or to discern whether, amid all the documents and recordings, there was something relevant to property distribution or spousal support.

After about ten minutes, the judge threw up his hands and exclaimed, “I’m not hearing this. I’ve had enough. What do you have, a suspicious mind?” The attorney and her client sat speechless. My client leaned over and in a sarcastic/relieved tone hummed the opening to Elvis’ “Suspicious Minds.”

You are not alone if you have ever considered tape recording your spouse’s conversations, monitoring her e-mails, hiring a private eye to follow her with her boyfriend, etc.

The temptation is great, particularly because technology has advanced so much that tracking and recording devices are small, efficient and affordable. But there are moral, ethical and strategic costs – and, under certain circumstances, criminal costs – that you must understand and discuss with your lawyer first.

In the first of a three-part series, we’ll look at surveillance laws. Subsequent parts will study the situations and the costs.

The Law

Federal and state laws prohibit surprisingly more surveillance activity than most people think. You should consult with a lawyer in your state to learn more about what is allowed. State law may prohibit more activity or provide different remedies for violations.

For example, Michigan, where I practice, prohibits some of the same surveillance methods as federal law (albeit in addition to or when federal law does not apply) but does not provide the same remedies.

The two main federal laws are the Federal Wiretapping Act (FWA) and the Electronic Communications Privacy Act and Stored Communications Act (SCA).

The Federal Wiretapping Act prohibits what most people have in mind by the term “wiretapping.” The pertinent part of the FWA is 18 USC § 2511(1), which provides, in part, that violations occur when one:

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when–
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
(e) (i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by [certain authorized means],  (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, (iii) having obtained or received the information in connection with a criminal investigation, and (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation . . . .

A person who violates the FWA is liable in a civil action for, among other things, preliminary and equitable relief, the greater of actual damages or statutory damages of $10,000 or $100/day of violation, punitive damages and reasonable attorney fees and costs.

In addition, records and interceptions obtained in violation of the FWA cannot be used as evidence in any proceeding according to 18 USC § 2515.

The FWA does contain an important exception commonly referred to as “the consent exception.”

According to 18 USC § 2511(s)(d), it is not unlawful under the Act for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception.

The Electronic Communications Privacy Act and Stored Communications Act, as amending it since 1986, 18 USC § 2701 et seq., prohibits certain methods of accessing electronic communications stored electronically (e.g., the e-mail stored to your “old mail” inbox on an AOL server).

The SCA makes it an offense to “intentionally access without authorization a facility through which an electronic communications service is provided…and thereby obtain…access to a wire or electronic communication while it is in electronic storage in such system.” This is essentially a prohibition on accessing stored electronic messages.

 

Note: This is part 1 of a three-part series on surveillance in domestic cases. Click here to read part 2 and click here to read part 3.

 

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.

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