The Internet and the Cheating Spouse

By Robin Johnson For those of us who use computers regularly, the Internet has changed many areas of life. Even unfaithful spouses and those who catch them have been affected by the Internet. The statistics on cheating vary, depending on which study you look at. Some say anywhere from 22 to 40 percent of husbands cheat, and between 12 and 25 percent of wives. More and more, wandering spouses use the Internet to find other partners or as a means to communicate with the “other man or woman.”  And some spouses who suspect cheating use the Internet to catch the infidel. If you’re in the last category and you hope to use evidence you collected with spyware, you could be running afoul of the law. Are You a Law Breaker? Depending on your state, if you use spyware to secretly capture and monitor messages sent electronically over a computer, you could be in violation of the state anti-wiretapping laws. You’ve no doubt heard of court cases where there was proof of guilt, but because of some technicality in the gathering of the facts, the case ends up being dismissed.  In the same way, a husband or wife who installs a spyware program and collects proof that a spouse is unfaithful could end up with inadmissible evidence. Below is a real court case that illustrates the problem. The Facts A Florida wife had the goods on her husband, which showed he was indeed, carrying on an affair. But the court barred her from introducing some of the evidence because of the way it was collected. The wife had installed a spyware program called Spector on her husband’s computer, in order to take snapshots of all conversations he sent and received.  Once messages were intercepted, they went to a storage space until the wife could access them.    What she found made it clear that her husband had a girlfriend. She presented this evidence to the court as part of her divorce case. At some point after the wife retrieved the messages, her husband discovered the existence of the spyware and removed it from the computer.  To keep his wife from using the evidence she’d gathered using Spector, he filed a motion with the court asking them to dismiss the evidence since it was collected illegally.   The judge in the case agreed with the husband and barred her from using the evidence on the basis that her method of collection violated the state wiretapping laws. The wife then appealed the decision, claiming that the law prevents using “intercepted communications.”  These messages, she said, were sent first to storage rather than being read as they were written and received.   Unfortunately for her, the appeals court pointed out that the messages were captured in real time therefore they did constitute a violation of state law.  “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” said the court. In this case, judges relied on precedent set by the federal court wiretapping decisions, since there was no Florida precedent at that time. Florida’s wiretapping laws and the wiretapping laws of many other states are based on the Federal Wiretap Act. It should be noted that employers have successfully used evidence gleaned from employee e-mails in storage to prove a case.  The difference may have been that those messages were not captured in real time like they were in the Florida case. (Beverly Ann O'Brien v. James Kevin O'Brien, No. 5D03-3484, 5th District Court of Appeals, Florida, 2/11/2005) To see a transcript of this case, visit this legal Web site and arrow down: O'Brien v. O'Brien If you aren’t sure what is allowed in your state, find a summary of wire-tapping laws here: State by State Comments (0) >> Write comment Name Email Website Title Comment Write the displayed characters Add Comment

 

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