E-surveillance is a growing trend in divorce cases. One spouse installs software on the family computer to keep an electronic eye on their spouse. Thank you to Lee Rosen at the Rosen Law Firm in North Carolina for the alert to this article on CNet’s Police Blotter:
What: Husband uses keystroke logger to spy on wife’s suspected relationship with another woman, who sues to prevent the records from being used in the divorce case.
When: U.S. District Judge Thomas Rose in the southern district of Ohio rules on February 14.
Outcome: Rose denies request for injunction preventing the electronic documents from being introduced as evidence in the divorce case.
What happened, according to court documents:
Once upon a time, tempestuous divorces might have included one spouse snooping through the other’s private correspondence or eavesdropping on private conversations taking place in another room.
That kind of snooping was, for the most part, entirely legal. But when the same kind of snooping happens in electronic form, it can be a federal crime. (Last year, Police Blotter covered the case of the Garfinkel divorce. Another case involving spyware arose a year earlier.)
That may or may not be the case here. Jeffery Havlicek filed for a divorce from his wife Amy Havlicek in Ohio’s Greene County Common Pleas Court. Amy had been chatting through e-mail and instant messages with a woman named Christina Potter. Jeffery suspected that Potter and his wife, Amy, were romantically involved in a lesbian "relationship of some sort," his attorney would later say in a legal brief.
Around that time, Jeffery installed some sort of monitoring software on the family computer–a Dell Precision 220 that was located in the guest room, was used by multiple family members including teenage children, and did not have a password on it most of the time. (There is disagreement about why the software was installed; Jeffery says it was in part because of his daughter’s increased use of the Internet.)
Jeffery has admitted this much. In a sworn affidavit (PDF), he said that he installed an unnamed monitoring utility in September 2005, three months before his wife moved out of their home. The affidavit said the utility "collects keyboard typing, screen shots, and requested access to Web sites…The keyboard typing utility logs the time and sequence of keystrokes…The screen shot logging feature is similar to hitting the ‘print screen’ button on most keyboards. It saves an image of what appears on the monitor."
He also admitted to downloading e-mail from his wife Amy’s Web-based e-mail account, but claimed it was authorized because she had chosen to save her username and password through the browser’s "remember me" feature.
In total, Jeffery has acknowledged compiling 80 keyboard and Web site log files in HTML format, more than 2,000 individual screen snapshots in JPEG format, six video tapes, six audio tapes, and numerous other files including "24 electronic documents from diaries, love letters, etc."
He planned to use that vast array of electronic evidence as ammunition to win his divorce case. Eventually his lawyer showed some of the correspondence between Amy Havlicek and Christina Potter to Amy’s own attorney. In an affidavit (PDF), Potter claims that the correspondence was also shown to neighbors and a court-appointed custody evaluator "to harass, annoy, and inflict emotional injury on me."
Potter, his wife’s alleged paramour, responded by filing a federal lawsuit designed to shut Jeffery up. She asked for an injunction barring any "disclosure" or "dissemination" of the electronic documents, including preventing them from being used in the divorce case taking place in state court.
The Electronic Communications Privacy Act, a federal law, was violated during the recording, Potter claimed. ECPA (18 USC Section 2511) bans anyone from disclosing "to any other person the contents of any wire, oral, or electronic communication" that was obtained illegally.
Potter lost. U.S. District Judge Thomas Rose said that ECPA does not permit courts to disallow such evidence, saying that appeals courts "have concluded that Congress intentionally omitted illegally intercepted electronic communications from the category of cases in which the remedy of suppression is available." He also rejected her request for a broader injunction, saying it would violate Jeffery’s freedom of speech as protected by the First Amendment.
Rose did say, however, that "disclosure of the information in state court by Jeffery Havlicek or his attorney" might be "actionable civilly or criminally." He suggested that the "remember me" option probably didn’t give Jeffery an implied right to view his wife’s e-mail messages. And he ordered Jeffery to provide Potter, his wife’s alleged paramour, with the complete set of electronic evidence that he had planned to use in the divorce case.
Excerpt from Rose’s opinion:
Because the suppression provision excludes illegally intercepted wire and oral communications from the courtroom, but does not mention electronic communications, several courts, including the Sixth Circuit, have concluded that Congress intentionally omitted illegally intercepted electronic communications from the category of cases in which the remedy of suppression is available.
With this distinction in mind, the court finds that it does not have the authority to forbid the disclosure of the allegedly intercepted communications to the state official determining custody of the Havliceks’ children or any other state court proceeding. This is not to imply, however, that disclosure of the information in state court by Jeffery Havlicek or his attorney might not be actionable civilly or criminally under 18 USC (Section) 2511. In any event, the court’s inability to enjoin the presentation of this evidence in state court does not resolve the question of whether the injunction on disclosing this information in other context should issue. Therefore, the court will proceed to consider the appropriateness of relief in this case, beginning with plaintiff’s chances of succeeding on the merits.
Defendant’s response to the motion for preliminary injunction claims that the keystroke recording and screen shot recording software do not record communications contemporaneously with the transmission of the communications. Contemporaneousness was an element originally introduced to 18 USC (Section) 2511 when the law applied only to wire and oral communications…
We conclude that the term "electronic communication" includes transient electronic storage that is intrinsic to the communication process for such communications. That conclusion is consistent with our precedent…
Moreover, the court views the screen shot software as distinct from the keystroke software in regards to the interstate commerce requirement. In contrast to the keystrokes, which, when recorded, have not traveled in interstate commerce, the incoming emails subjected to the screen shot software have traveled in interstate commerce. Additionally, there is no evidence before the court to allow any conclusion that the technical aspects of the instant case result in Potter’s claim being defeated by a lack of contemporaneousness, even if the court were to find this element necessary…
Defendant raises another hurdle to success on the merits, however, by referring to the case of United States v. Ropp, which focuses on the requirement in 18 USC (Section) 2510(12) that the interception be of an interstate or foreign communication or be of a communication affecting interstate commerce. Ropp notes that keystroke software records the entirely internal transmission from the keyboard to the CPU, and records all keystrokes, whether they initiate signals destined to travel in interstate commerce or not. The decision, however, seems to read the statute as requiring the communication to be traveling in interstate commerce, rather than merely "affecting" interstate commerce. It seems to this court that the keystrokes that send a message off into interstate commerce "affect" interstate commerce…
Because the ECPA does not provide for the relief of suppression of illegally intercepted electronic communications sought to be used as evidence in a court case, and because a balancing of plaintiff’s impending irreparable harms and the public interest in the requested injunction against plaintiff’s likelihood of success on the merits of her claims weighs in favor of not granting the requested injunction, plaintiff’s motion for preliminary injunction, Doc. 16, is denied.