Love, keystroking, spyware and passwords: Oh my!

Electronic eavesdropping capabilities have reached new heights with the ongoing development of technology. With high stakes and hot emotions surrounding family law litigation, finding evidence of infidelity, hidden assets, or information about legal strategies often becomes an obsession of spouses, and obtaining it through electronics may seem like a really great idea in the heat of the moment. However, there are important statutory prohibitions and constitutional safeguards for privacy rights that can apply to electronic eavesdropping. The potential criminal and civil implications of hi-tech snooping are serious business.

Electronic Communications Privacy Act

The Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act (collectively referred to in this article as the “ECPA”) are the two primary federal laws that make certain types of electronic eavesdropping illegal acts. Communications that are covered by these federal statutes are broad and include, but are not limited to, wiretaps, telephone interceptions, electronic mail, voice mail, instant messaging, and recording face-to-face conversations.

The ECPA prohibits the unauthorized and intentional interception, use, or disclosure of covered communications via electronic, mechanical, or other devices, and access to the stored wire or electronic communications of another person. “Interception” is the “aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device,” and electronic “storage” is defined as “any temporary, immediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” Courts have struggled about the difference between interceptions and access to stored information, and the resulting penalties can differ.

Secret Agent Tools

Two newer methods of monitoring or collecting the electronic information of another person include Spyware and keystroking. “Spyware” is software installed on the hard drive of a computer that records every detail of what is done on the computer. Some vendors even claim that the software can capture screenshots of exactly what is done on a computer, in the exact order it was done. “Keystroking” refers to the use of a small recording device that clips onto a computer keyboard cable and records all keystrokes made on the keyboard. Conflicting outcomes have been reached in cases across the country on the use of these devices and whether their use is illegal under the ECPA. Just because a computer product is available on the open market for consumers to buy does not make it legal to use, any more than the fact that you can buy a gun at Wal-Mart means you can legally shoot someone.

That is Highly Offensive!

North Carolina recognizes the tort (an enforceable legal claim) of intrusion into the seclusion or solitude of another. There are several elements of this tort claim, but the primary issue is whether the intrusion is “highly offensive to a reasonable person.” Answers can be revealed through examples, such as whether a reasonable person would be justified in expecting her cellular telephone calls taken in public to remain private, or whether a reasonable person would be justified in expecting his chat room conversations to remain private. One’s reasonable expectation of privacy is viewed objectively (meaning it’s based on what a jury would find to be the expectation of a hypothetical “reasonable person,” not on the basis of what a particular person, such as the plaintiff, would expect), and the main issue turns on the reasonableness of the expectation, not whether the violation of privacy was understandable or justified.

But I Have the Password?!?!

A determination of whether the interception or access to electronic storage was unauthorized is examined by the courts on a case-by-case basis. For example, a long-standing practice of an account holder of giving free access to his or her passwords and e-mail accounts can, depending on the circumstances, be viewed as explicit consent by the account holder to the interception of the account holder’s messages or access to the account holder’s stored communications. There may also be situations that provide evidence of implied consent. However, if the plaintiff provided the password to a person for a specific reason, the authority of interception/access cannot be exceeded. For example, if the password to an online bank account was provided for access to transfer funds on one particular occasion, use of the password on another occasion to review the account holder’s account history would be in excess of the authorized access. The issue of whether an interception or access is authorized is very complex, and care must be taken to act only in accordance with specific legal advice.

I’ve Been Violated: Now What?

If you believe that your covered communications have been intentionally intercepted or your stored communications have been accessed without your consent, there are multiple avenues available to you to pursue remedies. Under the ECPA, injunctive relief may be available to you, as well as actual and punitive damages and reimbursement of your attorneys’ fees. You may also be entitled to pursue criminal charges and/or a civil lawsuit under state law for invasion of privacy. Finally, “evidence” that has been obtained in violation of the applicable federal and state laws may be excluded in your underlying suit; for example, intercepted communications that confirm extramarital sexual activities could be excluded and not admitted in an alimony or custody lawsuit.

Conclusion

There are specific deadlines one has to meet in seeking legal claims, and if you have discovered, or have had a reasonable opportunity to discover, a possible violation, you should take immediate action to assess your legal options. This area of the law is not “black and white” and many aspects of eavesdropping claims are fact dependent and complex. Therefore, it is always a good idea to seek legal counsel prior to engaging in conduct that could be illegal or if you think your rights have been violated. Remember, an ounce of prevention is worth a pound of cure!

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