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Cybersex and Divorce At some point or another, the divorce lawyer has had the experience of having a client walk into the office and informing us that they have absolute proof of their spouse’s misconduct. When queried as to the manner in which they obtained the proof, we have often been advised that the proof was obtained through the unauthorized recording of their spouse’s telephone conversation with a third party. Being the astute lawyers that we are, we then advise our clients that they may have violated State or Federal Wiretap Statutes thereby exposing themselves to criminal penalties, but also severe civil penalties. For example, New Jersey’s Wiretapping Statute provides as follows:
The Federal Wiretap Statute has similar language but important differences which will be discussed further in this article. Of recent, in the modern computer age, the scenario has changed to a large degree, whereby clients are more often advising that they have proof of their spouse’s misconduct by means of reading the electronic mail, retrieving pager messages, eavesdropping on cell phone or cordless phones, retrieving records from internet conversations in chat rooms or private cybersex chat rooms. The question, which immediately arises, is how was the message retrieved? Improper retrieval of e-mail could readily constitute a violation of a wiretapping statute. If the messages were stored on a home computer in which both parties have equal access, your client may or may not be in violation of the wiretapping statute. However, if the electronic communication is retrieved by accessing the other party’s On-line account, then and in that event, you must advise your client that they may be subject to criminal penalties and, in addition, civil penalties. The importance of an immediate detailed determination as to how your client obtained the electronic communication evidence is most vital. This query will determine whether or not your client can utilize the evidence, or whether you must advise your client that the evidence can never be utilized and that disclosure would subject the client to criminal penalties and civil penalty. Typical State Civil penalties provide: “Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of this act shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication; and shall be entitled to recover from any such person:
TELEPHONIC INTERCEPTION The initial case in New Jersey in regard to interspousal wiretapping was decided August of 1991. The husband in that case surreptitiously recorded his wife’s telephone conversations in the marital home. The conversations disclosed that the wife was having a non-heterosexual affair. The husband confronted the wife and threatened to use the tapes in a custody battle, as well as disclosing the tapes to friends and family. As a direct result, the wife suffered extreme emotional distress and required extensive psychological care. The husband went one step further and played the tapes for the wife’s sister and offered to play them for other family members and friends. The wife’s attorney made a claim for civil damages under the wiretapping statute. The Judge commented on the manner in which the disclosure had completely shattered the wife, who was experiencing nightmares and was severely depressed. He stated that she manifested symptoms of guilt identical to those experienced by many rape victims. The court awarded $10,000.00 in compensatory damages and in consideration of the husband’s willful and wanton disregard of the wife’s right to privacy, he was assessed $50,000.00 in punitive damages. In his opinion, the Judge pointed out the fact that although there were no reported New Jersey cases regarding interspousal wiretapping, he could utilize the significant amount of federal case law on the subject, since the New Jersey Statute is virtually identical to the Federal Statute controlling the use of electronic surveillance, namely, Title III of the Omnibus Crime Control and Safe Streets Act of 1968. On the Federal level, the Courts have long been divided into two schools. One school of thought has created a “marital home” exception to the wiretapping statute, whereas the majority school has held that there is no such exception. The leading Federal case imposing the marital home exception is Simpson v. Simpson. The Husband in the Simpson case attached a taping and recording device to the phone line in the house to record his wife’s conversations with third parties, as a result of suspecting her of infidelity. The husband then played the tapes to several people. The court found a “marital home” exception, and denied the wife a civil recovery. The court analyzed the various committee reports and legislative hearing reports and cited a remark at one of the legislative hearings wherein it was stated that it was hoped that “nobody wants to make it a crime for a father to listen on his teenage daughter or some such related problem.” The court obviously had an aversion to the Federal intervention in marital home activity, despite the fact that the statute itself made no such exception. In effect, the court was actually legislating instead of adjudicating. Similar conclusions were reached at the Federal level in the cases of Anonymous v. Anonymous and London v. London. The courts in the Anonymous and London cases, similarly held that the acts took place in the family home, involved family members, and that the taping of the conversation was a little different than listening to the conversations on an extension phone. The courts were obviously stretching to the limit in order to avoid making a determination in marital disputes and they were clearly legislating language into the statute, which had not been placed there by the congressional authorities who originally passed upon the act. The Simpson viewpoint; however, is clearly in the minority in the Federal courts and the majority clearly followed the statutes, interpreting the law as it reads, instead of expounding their own version of the act. United States v. Jones held that there was no “marital home” immunity, as set forth in Simpson, and was highly critical of Simpson. The Simpson court commented on the fact that without the “marital home” immunity, the Federal Statute might conflict with state statutes, which grant interspousal immunity from court claims. Jones found that the statute clearly made no such provisions, nor indicated any such intent. Of course, in New Jersey, which permits interspousal tort actions under the Doctrine of Tevis v. Tevis, this argument would carry very little weight. Pritchard v. Pritchard followed the reasoning in United States v. Jones, and stated that the statute clearly made no “marital home’ exception in that a husband who wiretapped the family phone and recorded his wife’s conversations with third parties, while they were still married was clearly liable under the statute. The Pritchard case also discussed the legislative history of the Federal Statute and made a direct finding that the history indicated that congress was aware of the extent of wiretapping in family situations and that it was the clear intent of congress to prohibit such wiretapping. Kratz v. Kratz involved a case where the husband hired a private detective who wiretapped the family phones. The court went into great detail to indicate that the statute prohibiting such conduct was clear and that the wife had a right of privacy, even in the marital home, contrary to the Simpson holding. The Federal Courts have continued to reject the Simpson doctrine in numerous other cases including Heyman v. Heyman and Heggy v. Heggy. The New Jersey Court has followed the majority Federal opinion and stated that it was quite evident that the New Jersey Wiretapping Act contained no explicit exemption for an aggrieved spouse to tape record the other party’s conversations. Justice Brandeis, wrote:
Commenting on the trauma created by the invasion of privacy, New Jersey Court held:
The Federal Wiretap Statute, 18 U.S.C. 2510 Specially prohibits interception and disclosure of wire, oral, or electronic communications. The statute then goes on to list some specifically enumerated exceptions which basically discuss the exceptions allowed under law for wiretapping. There are also various exceptions for operators at switchboard, operators of citizens band, amateur, general mobile radio services and, marine aeronautical services. This complete prohibition of interception of communications is based on the legislative intent to protect the citizens against unwarranted invasions of their privacy. The legislature seeks to protect from both private and public invasions of privacy including those of law enforcement. The prohibition against interception is very broad and even for law enforcement to conduct an interception, there must be a Court Order in place. This broad prohibition reflects the public policy of the federal government and also the majority of the states. The majority of States have wiretap statutes which essentially track the Federal Wire and Electronic Communications Interception and Interception of Oral Communications Statute, 18 U.S.C.A. 2511: (1) Except as otherwise specifically provided in this chapter any person who:
(4)
An Alabama Appellate Court, used the “consent exception” to 18 U.S.C. A. Section 2510 to hold that a tape recording made by a father of a conversation between the mother and a minor child was consented to on behalf of the minor by the father. Under Alabama Law and also Federal Law, consent is a defense to eavesdropping or tape-recording of a private conversation. Therefore, it becomes necessary to determine whether a minor child has the capacity to consent or whether the custodial parent could consent on behalf of the minor child to taping of the child’s conversation. The Court looked at the common law duty of protection of a minor child and felt that there could be limited instances where a parent could vicariously consent on the behalf of a minor to the taping of telephone conversations. The parent must have a reasonable good faith basis for believing the minor child is being abused, threatened or intimidated by the phone call. In an interesting California case, the husband had been secretly wire tapping conversations between his wife and another man. To the husband’s shock, his wiretapped conversations revealed a plot on how to murder the husband. The husband was in fact eventually murdered in his home. Upon discovery of the wiretapped tapes by the police, suspicion focused on the wife and her lover, and they were convicted of his murder. Both parties objected to the admissibility of the taped conversations. The Attorney General’s Office tried to use the “implied interspousal or wire tap exception” to use the tapes as evidence. This wire tap exception, which is recognized in only a minority of states does not prohibit a family member from wire tapping the families’ phone. The Court looked at the language of the statute, which states that all interceptions are prohibited except for those specifically enumerated and the “interspousal wiretap exception” was not specifically enumerated. The Court analyzed the legislative history behind Title 3 which is “Omnibus Crime Control and Safe Street Act” which indicated Congress was aware of the problem of interspousal surveillance and could have exempted it if they so desired. The language of Title 3, 18 U.S.C. 2511 is clear as well as the legislative history and majority of courts. The penalties and prohibitions of 18 U.S.C. 2510 applied to interspousal wire-tapping. The majority of State Courts have held that State Wire Tape Statutes, which have been modeled on the federal act, have no exception for domestic surveillance. An exception to this conclusion was reached in Simpson v. Simpson 49 F.2d 803, (1974) where the Court acknowledged Title 3 did not include an interspousal wire tap exception, because Congress did not intend to intrude into domestic relations, which was normally left to the states. Although Simpson has not been overruled, it has been soundly criticized for creating a “marital home” exception despite the legislative history and the language of the federal act. It is apparent from the language of the federal statute that congress did not intend to defer the states on the wire tap area and that one of the goals of the wiretap statute was to precisely forbid marital wiretap. The Simpson court likened the marital home exception to interspousal immunity, which is based on maintaining marital harmony. It would seem that someone feeling the need to wiretap their spouse in their own home is not seeking to promote a harmonious marriage. The Courts have moved away from the Simpson marital home exception and the majority find that there is not a marital home exception in the federal wire tap act. In Florida, the state statute has greater privacy protection than 18 U.S.C. 2511 (2)(d), which permits taping with the consent of only one party. The Florida Statute requires the consent of all parties not just one. The Court has found that federal law does not preempt state law, which is offering a greater privacy protection but that the defendants in the case were still required to prove the elements of the defense before it could be applied to their case The Supreme Court of Idaho discussed the tort of invasion of privacy and indicated that there is liability for invasion of privacy when you intentionally intrude physically or otherwise upon the solitude or seclusion of another. An intrusion could occur without any physical invasion such as eavesdropping by means of wire-tapping. There must be something in the nature of prying to be an intrusion and the matters looked into must truly be private. The right to privacy is the right to be let alone. As far back as 1890 in Harv. L. Rev. 193, 213 (1890) Samuel D. Warren and Louis D. Brandeis discussed privacy rights and stated:
The American Courts have long recognized the right to privacy and the federal wiretap statute is based upon protecting this right to privacy. In a Washington case, a father waived any statutory privacy right when he left messages on an answering machine. In accordance with the statute, a party consents to communication being recorded when the other party has announced in a reasonably effective manner that the conversation will be recorded. It is obvious that an answering machine’s only function is to record messages and therefore, there would be no reasonable expectation of privacy. The father left messages to the son in which disparaging remarks were made regarding the child’s mother. Under a previous court order this type of behavior was banned and the answering machine tapes were used to provide the basis for holding the father in contempt of court. In Texas, an Appellate Court failed to recognize the Simpson exception. The Court felt that the Simpson created exception, was not found in the act itself. The suit was brought by the third party against the husband, which especially troubled the Court. There was an additional issue of privacy of the third party not just the wife’s privacy. The Court ruled that the transcripts of the wiretap tape could be used as evidence. The Court specifically stated no express exception in 18 U.S.C. 2510 et seq. for electronic interceptions of conversations between a spouse and a third party existed without prior consent. The Court refused to create such an exception even when the wire tap device was in the spouse’s residence. In another Texas case, the Court acknowledged that wire tapping of conversations between a mother and child by the father was an illegal wiretap. The Court went on to discuss whether this illegally obtained evidence could be admissible since under Texas case law some illegally obtained evidence has been held admissible. These tapes were not admitted in evidence because the tapes were illegally obtained under the Federal and State wiretap Statute. The tape recorded conversations were not admissible because criminal and civil statutes made specific provision for the disposition of interceptive communications and if the Court participated by allowing these communications to be introduced at Trial, the court would become a partner to illegal conduct. In a Tennessee case, the tape recordings of conversations in which only the wife was taped and were actually overheard by the husband were admissible. There was no attempt to intercept the phone conversation. The wife was in the garage speaking on the telephone in a normal tone of voice and the husband stood outside a window where he could hear her. There was no evidence to show that any of the transcripts of this phone conversation were the result of a phone conversation, which was otherwise inaudible. The husband testified that he could hear the entire conversation even though he had moved the tape recorder closer to better record the conversation. The Court found no evidence of wiretap of any means in this case merely by the recording of an otherwise audible conversation. The Louisiana Court system is in the minority in recognizing the marital home exception. The Louisiana Courts found that when taping was done of a conversation between the wife and a private investigator who she had hired that there was no interception. Although the wiretap occurred, it was done in the course of a marital matter and it did not rise to the level of a violation of 18 U.S.C. 2510. The Court cited Simpson as an authority for this proposition. Both the federal and majority of state statutes have provided for exemption listening in on an extension phone. The issue of an extension phone is discussed extensively in a Massachusetts Court decision . Congress had clearly exempted such activity from 18 U.S.C. 2510(5)(a)(i) . There has been a clear attempt on the part of congress and the case law to exempt ordinary eavesdropping in the context of the family home. The interception issue is not reached at all when an extension phone in the family home is used to listen in on a conversation. It has never been the intent of the congress to subject parents to criminal and civil penalties when they listened in on phone conversations of a minor child out of concern for the wellbeing of the minor child or inadvertently hear a conversation by picking up an extension phone. The wire tap statute is directed specifically against interception by sophisticated electronic equipment not against minor unsophisticated incidentally means of eavesdropping such as picking up a phone receiver or tape recording a call which could already be heard. The eavesdropper is present when the eavesdropping occurs in picking up on an extension phone as opposed to interception by an electronic device. This presence makes detection easier and also limits the opportunity for abuse. In Mississippi, the business use exception under 18 U.S.C. 2510 (5)(d)(i) was recognized as a reason to find that the interception of the tape recording of a father’s conversation with his children was admissible. The reasoning was that this section does not prohibit a person from taping a conversation within his own home that he is legally authorized to listen by picking up his extension phone. The Mississippi Court’s relied on the Simpson and Anonymous holdings to back up their position. It was argued in this case that the recordings were not intercepted by a spouse and not taped at the marital home since the spouses were divorced. The Court’s reasoned that if there is no prohibition against a spouse recording a conversation of another spouse within the martial home, then it follows that there would be nothing prohibiting a custodial parent from recording the conversations of the children in the custodial home. The basis for these arguments are that it is permissible to record what you could hear by picking up an extension phone. The violation of State wiretap Statutes failed in this case because there was subscriber exemption, and therefore, if you were the telephone subscriber and you intercept a communication on that phone, the Mississippi wiretap Statute did not apply. A New Mexico case brought up an interesting issue whereby a husband and wife separated and were divorced. The husband moved out of the marital home and took the marital home phone number to his new living quarters. The wife got a new telephone with a new phone number. Unbeknownst to the wife, the husband called Mountain Bell and asked for an extension phone of her number to be placed at his home. The wife complained to Mountain Bell, but the phone company found no wiretap. The wife eventually terminated her service and the extension at the husband’s home was discovered. Mountain Bell was found to have a duty to get consent when installing an extension phone off premises. Therefore both the husband and Mountain Bell could be pursued for damages. Both federal and state wiretap statutes have been implemented to protect against invasions of privacy of citizens. In the context of family law cases, this issue comes up with regard to civil liability and damages, and also with the use of taped conversations in divorce trials and custody trials. In the majority of states, the unauthorized taping of spouses’ conversation would lead to both damages and possibly criminal liability. Therefore, in matrimonial cases, clients should be advised not to tape their spouse’s conversations, unless it is consented to or they specifically fall within one of the enumerated exceptions of the state statute. CELLULAR AND CORDLESS PHONE INTERCEPTION Is it a violation of the wiretapping statute to intercept a cellar phone call or a cordless phone? Interception devices are easy to purchase and easy to use. There is very little case law which deals with the issue as it relates to cybersex and divorce. The Supreme Court of Louisiana in the case entitled State v. Neisler sheds light on the issue. The question was whether a cellar or cordless phone transmission was protected under the wiretap statute. The Louisiana Supreme Court held that the Louisiana or Federal Wiretap Statutes do not protect cordless telephone transmissions. The Court reasoned that the definitions of “wire” and “electronic” communications under both the state and federal statutes expressly exclude “the radio portion of a cordless telephone handset communication that is transmitted between the cordless telephone and the base unit.” In that sense a cordless transmission is an “oral communication” and would not be protected if there were not an expectation of privacy. In a footnote to that decision the Court drew the distinction between cordless telephone transmissions and cellular transmissions: . A. FN11. A note about the difference between a radio transmission over a cellular phone, which is a protected communication under the act, and a radio transmission between a cordless telephone and its base unit, which is not, might be helpful at this point. United States v. Carr, 805 F. Supp. 1266, 1269-709 (E.D.N.C. 1992) (citations omitted), provides the following excellent explanation of the differences between cellular and cordless telephones:
The Court also analyzed the 1991 amendments to the Federal Wiretap Act. Those amendments specifically exclude a protection for cordless telephone transmission because congress did not wish to criminalize the interception of radio transmissions which are easily picked-up by AM scanners, other cordless handsets, or any number of ubiquitous and mundane radio receivers commonly found in the ordinary American household which are capable of intercepting such transmissions. In State v. Tango the New Jersey Appellate Division held that cellular telephone calls that in part, used landlines, were covered by the 1968 Federal Wiretap Act and were not affected by passage of the Electronic Communications Privacy Act (ECPA) in 1986, which brought all cellular communications within the ambit of the wire tap act. Thus, it would appear that statute and case law protect cellular phone transmissions from interception in New Jersey. New Jersey has adopted a more restrictive wiretap statute than the Federal Act. New Jersey’s Wiretap Statute defines a “wire communication to include “any electronic storage of such communication, and the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit”. This is the opposite of the Federal Statute, which exempts cordless phones. The addition of electronic storage broadens the New Jersey Act tremendously. PAGER INTERCEPTION Often a suspicious spouse will seize their spouse’s pager and scan the memory for telephone numbers, which may lead to proof of infidelity. Is the retrieval of stored telephone numbers on a pager a violation of the wiretap act? On a Federal level, the answer would appear to be no. In U.S. v. Reyes the Court held that pressing the button on a pager to access its memory is not an “interception” within the meaning of the word Electronic Communications Privacy Act (ECPA). The Court held that intercepting an electronic communication means acquiring the transfer of data simulantously with the original transmission of the data. It reasoned that the retrieval of a number from a pager’s memory involves obtaining the electronic images after the pager had ceased operation. Thus, a digital display pager, by its very nature, is nothing more than a contemporary receptacle for telephone numbers. Again however, compare the more stringent language of the New Jersey Wiretap Act NJSA 2A:156A-2 which defines “wire communication” as including “electronic storage of such communication”. E-MAIL/”ON-LINE” INTERCEPTIONS Can you retrieve e-mail message and records of chat room activity without violating the Wiretap Act? The case of Steve Jackson Games v. United States Secret Service is helpful. In that case the Secret Service executed a Warrant and seized a computer on which was stored private e-mail that had been sent to an electronic bulletin board but had not yet been read (retrieved) by the recipients. The Federal Act defines an “electronic communication” as any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system that affects interstate or foreign commerce, but does not include :
The Court turned to Webster’s Third New International Dictionary (1986) which defined “aural” as “or relating to the ear” or “of or relating to the sense of hearing”. Thus, under the Act an “aural transfer” is a transfer containing a human voice at any point between and including the point of origin and the point of reception. Whereas, an “electronic communication” is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in party by a wire, radio, electromagnetic, photoelectronic or photo-optical systemÉbut does not includeÉany wire or oral communication”. The court further held that “electronic communication” does not include electronic storage of such communications. The court held that electronic communications are subject to different treatment under the Wiretap Act and the Act’s exclusionary rule applies to the interception of wire communications, including such communications in electronic storage. Thus, the Act defines “electronic storage” as any temporary, intermediate 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 back-up protection of such communication. The court therefore ruled that e-mail is electronic storage and not electronic transmission, that congress did not intend for “intercept” to apply to “electronic communications” when the communications are in “electronic storage”. However, the New Jersey Act specifically includes electronic storage of wire communications and it would appear that the decision would be vastly different. CONCLUSION With the current prevalence of internet sex and the resulting divorce litigation, we must be aware of wiretapping violations. A spouse who is attempting to prove their partner’s infidelity by retrieving messages from hard drives, Internet services, recycle bins, or other areas of storage, could clearly be in violation of a state statute, unless there was authorization. The law is complex and we all must be aware of the pitfalls in order to protect our clients from damage awards and potential criminal exposure. Mark Gruber, Esq is certified by the Supreme Court of New Jersey as a Family Law Attorney, a Fellow in the American Academy of Matrimonial Lawyers, and a Fellow of the International Academy of Matrimonial Lawyers. He is certified by the AAML as a divorce mediator and arbitrator. He has practiced family law for 28 years in New Jersey. Acknowledgement
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