Intellectual Property Law

Eavesdropping Your Spouse's E-mails?

By Martha L. Arias

We may not need scientific data to prove that with the increasing use of the Internet, men and women have eavesdropped, or considered eavesdropping, their spouse's e-mails.  Eavesdropping spouses' e-mails may constitute a crime under both federal and state law but careful factual analysis is required. For instance, the United States Code (U.S.C.), title 18- crimes related to interception of wire and electronic communications,- may apply to e-mail eavesdropping but there must be an actual "interception" within the meaning of the statute.  Also, most U.S. states have criminal statutes penalizing the interception or eavesdropping of electronic or telephonic communications; analysis of technical terms is also required in these cases.  Lastly, some state tort claims may apply to these snoopy conducts; it seems that these claims are easier to win.

18 USC §2511 prohibits the interception of oral, wire, or electronic communications.  The statute expressly states that any person who "intentionally" intercepts, endeavors to intercept, procures another person to intercept; or uses, endeavors to use, or procures another person to use a mechanic device to intercept any wire, oral, or electronic communication commits a punishable crime.  When a device is used to intercept the electronic or wire communication, that device can be affixed to, or transmit a signal through a wire, cable, or other like connection.  Also, when a device is used for the interception of the electronic communications, the person's conduct is also punishable if that person knows or has reason to know that the device has been mailed or transported in interstate foreign commerce. This statutory section sanctions the eavesdropping conduct even if "takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or 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." It is also a crime to "intentionally" disclosing, or intending to disclose, the intercepting communications to any other person; this is particularly applicable to spouses that intent to use the eavesdropped e-mails in family courts. This crime carries fines or imprisonment for up to five years.  In certain circumstances, usually involving more serious violations, the person may be civilly sued by the Federal Government. 

18 U.S.C § 2512 makes it a crime to possess, manufacture, distribute, and advertise wire, oral, or electronic communication intercepting devices.  The conduct must be an "intentional." For this crime, a person may be fined or imprisoned for up to five years. This particular section of the federal statute applies when the eavesdropping spouse uses a mechanical device for its spy activities. Lastly, state tort theories such as invasion of privacy and intentional infliction of emotional distress, among others, may also constitute possible causes of action against spouses who are eavesdropping his/her partners' e-mails.   

A Michigan case illustrates how this federal statute and these state tort claims have been used in spouse cases involving e-mail eavesdropping.  In Bailey v. Bailey (2008 U.S. Dist. LEXIS 8565), husband eavesdropped his wife's yahoo e-mail and found compromising information.  The husband used a key logger software version that he installed in two home computers. This software records any keystroke in a computer and saves it in a file in the computer's hard drive. Through this software, husband learned wife's e-mail password and accessed it; he discovered adult content in wife's e-mails.  The husband left home with his children and initiated divorce proceedings.  The husband provided copy of wife's e-mails to his family attorney to be used in the divorce case.  The husband was granted full custody of the children (additional wife's behavioral issues triggered this decision) to which wife alleged it had not happened but for the e-mails husband illegally obtained.  Wife filed a lawsuit alleging her husband violated 18 U.S.C. §§ 2511, 2512; Michigan Criminal Code- MCL §§ 750.539a and 750.540; and violated invasion of privacy rules; and intentional infliction of emotional distress, among others. 

Definition of the term "interception" becomes a major issue in cases under U.S.C. title 18.  In Bailey's case, the court held that interception within the meaning of the statute "encompasses only acquisitions contemporaneous with transmission." The husband obtained the e-mail password through the software program; his eavesdropping was not "contemporaneous with the transmission."  Therefore, there title 18 of the U.S.C. (Wiretap Act) does not apply.  Husband was granted summary judge as to the 18 U.S.C. § 2511 charge.   Regarding violation of 18 U.S.C. § 2512, the court held this statute does not apply to husband's conduct because this section of the statute does not apply to the use of the wife's electronic communications.  The husband was also granted summary judgment on wife's claims that husband's conduct violated Michigan Criminal Code. 

As the Bailey's case shows, typifying eavesdropping of e-mails within title 18 of the U.S.C. is not an easy task.  Factual analysis and careful review of the term "interception" as interpreted by state law is required.  If the spouse's conduct does not qualify as actual "interception," a claim under title 18 may not be successful.  Torts claims of invasion of privacy may prove to be more victorious in e-mail eavesdropping cases.        

Full post as published by IBLS Internet Law Blog on October 31, 2008 (boomark / email).