Be careful how you seek to use spyware, as you could land yourself in trouble. Indeed, a Florida appellate court recently ruled, in the case Beverly Ann O'Brien v. James Kevin O'Brien, that a woman violated state criminal law when she "illegally" obtained records of her husband's online communications with another woman. Not only was the woman prohibited from introducing the communications as evidence in the couple's divorce proceedings, the court found that her type of interception activities could be punishable as a crime under a state law prohibiting interception of electronic communications.
The facts
When marital problems developed, the wife secretly installed a spyware program named Spector on the husband's computer. The husband engaged in private online communications with another woman while playing Yahoo Dominoes on his computer. The Spector spyware secretly took snapshots of what appeared on the computer screen, and captured and recorded all chat conversations, instant messages, emails sent and received, and the Web sites visited by the user of the computer.
When the husband discovered his wife's efforts to monitor and record his communications with his Dominoes partner, he uninstalled the Spector spyware and he obtained an injunction preventing the wife from disclosing the communications. The husband also won a ruling barring the wife from introducing the communications into evidence in the divorce proceedings that ensued. The wife filed an appeal, seeking a determination that she should be allowed to introduce the husband's communications into evidence in the divorce case.
The law
The appellate court specifically was called upon to interpret the Security of Communications Act, Section 934.03(1) of Florida Statutes (2003). That Section criminalizes the intentional interception of any wire, oral or electronic communication of another person. Florida caselaw provides that this Section reflects the policy of Florida to protect the expectation of privacy in communications from interception by others. The core question to be resolved by the appellate court was whether the spyware used by the wife constituted an interception.
"Intercept" is defined under the Florida statute as "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." The appellate court noted that there is "a rather fine distinction between what is transmitted as an electronic communication subject to interception and the storage of what has been previously communicated" — the former of which is addressed by the statute, while the latter is not.
Ultimately, the appellate court concluded that the Spector spyware secretly installed by the wife on the husband's computer intercepted and copied electronic communications "as they were transmitted," thus constituting "interception" under the Florida statute. The appellate court therefore ruled on the issue before it that the husband's communications could not be admitted into evidence in the divorce proceeding.
Implications
Only properly obtained evidence can be used in legal cases. Perhaps even more important to keep in mind is that improperly obtained evidence could lead to even further adverse consequences besides the inadmissibility of evidence. In this case, for example, the court ruled that the evidence obtained by the wife was done in violation of a criminal statute. It is not clear from the record whether the wife ever was prosecuted for this violation, but everyone should be on notice that illegal interceptions of communications certainly can lead to criminal prosecution.
Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at . To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to .
Reprinted here with permission from USAToday.com.