This article was written by Samuel R. Troy of TROY LEGAL, P.A.

Many of us use the internet to bank online or stay in touch with friends though instant messaging, e-mails and more recently, social networking sites such as Facebook. In addition, online dating has become a multi billion-dollar industry. So it’s no wonder family law practitioners are finding that today’s marriages are breaking up over online activity.

Spouses are often caught hiding assets, having online affairs or surfing the Internet for pornography. Whatever the issue may be, the problems have only increased as technology has improved.

With these online temptations, spouses have become more suspicious of one another, which have led to the growing popularity of cyber spying. The spying spouse is not new to family law practitioners; it is the means in which spouses are spying that has changed over time.

There are, however, dangers that come with this new wave of “cyber spying,” including computer-related crimes, the admissibility of evidence recovered and penalties.

There are three important computer-related crimes pertaining to the spying spouse:

Computer-Related Crime #1
Interception of Electronic Communication

Florida Statute §934.03, prohibits an individual from Intercepting, using or disclosing wire, oral, or electronic communication without authorization.

The key to determining if a client has violated §934.03 is whether the electronic communication intended for the computer user, was actually intercepted, “in transit”. If the electronic communication is not considered to be “in transit”, the communication will be deemed stored communication and thus not a violation of §934.03. The difference between intercepted communication and stored communication is a miniscule amount of time as discussed in O’Brien v. O’Brien, 899 So.2d 1113 (Fla. 5th DCA 2005).

In the O’Brien case, the wife suspected the husband was having an online affair. In an attempt to catch the husband in the act, the wife secretly installed a spyware program on the husband’s computer. The spyware would take snapshots of the husband’s conversations with this other woman and immediately transfer those snapshots to the wife via e-mail. The spyware was able to capture and record all of the husband’s conversations, instant messages, emails and the websites the husband had visited.

The wife thought she hit the jackpot when she was able to intercept conversations between her husband and another woman over the computer. Once the husband discovered the spyware, he immediately removed it from his computer. He then filed to prevent the wife from using the electronic communications she recovered through the use spyware as evidence in court.

The husband also filed a permanent injunction to prevent disclosure of the stolen communication, to prevent the wife from engaging in this behavior in the future and to suppress the communications as evidence in the divorce proceedings.

The court granted all of the husband’s requests and entered a final judgment without considering any of the electronic communications between the husband and his online girlfriend. The wife appealed the rulings by the lower court.

The wife argued that the evidence should have been admissible because the information she obtained was stored communication not intercepted communication. Her position was that because the communication had arrived at the husband’s computer before it was transmitted to the wife, it should be considered stored communication. Therefore her actions did not violate Florida Statute §934.03.

The husband argued that the electronic communications were actually captured in real time as they were being transmitted. Thus the wife’s actions constituted an interception of electronic communication in violation of Florida Statute §934.03 and the evidence should not be admissible.

The appellate court held that the legislature’s intent was to protect individuals’ rights to privacy regarding activities and communications online. The court had to determine whether the wife’s acts amounted to intercepting electronic communication. Florida did not have precedent to rely on that would explain the distinction between intercepted electronic communication and communication acquired in storage. The court, however, found that the definition of “intercept” in the federal code is nearly identical to the definition found in the Florida Statute. Therefore, the court looked to the Federal Code and Federal Case law in order to formulate their holding.

The Federal Courts have held that for electronic communication to be considered “intercepted” it must be: Received by the spying party contemporaneously with the transmission. Interception of electronic communication does not take place if the electronic communication that is accessed by the spying spouse, is taken from computer storage.

There is little doubt that the time period between communication being “in transit” and being considered “stored,” is minuscule. However, the court refused to acknowledge that the miniscule time period between the transit of the communication and its arrival at the husband’s computer transformed the communication into stored information.

It was established by the husband, that the electronic communication being transmitted to the husband was being contemporaneously transmitted directly to the wife by the spyware program.

The appellate court thus held that the wife’s use of spyware was tantamount to intercepting electronic communication and was in violation of Florida Statute §934.03.

The distinction between “stored communication” and communication that is “in transit” is important in the context of a family case. If the court found that the electronic communication obtained was in fact stored, the wife’s activities may not have been illegal and the issue would have to be dissected even further.

For example, if the parties shared their computer, the wife may have had the right to access any and all of the information stored on that computer. Because the information directed to the husband was considered to be “intercepted”, the wife’s installation of spyware was considered illegal and she was open to criminal and civil actions.

Computer-Related Crime #2
Stored Communication

The O’Brien case provides a decent framework for determining a violation of Florida Statute §934.03. Florida Statue §934.21, pertains to stored communication, and its applicability in family law matters is far less clear.

Florida Statute §934.21 reads:

• Whoever: (a) Intentionally accesses without authorization a facility through which an electronic communication service is provided, or (b) Intentionally exceeds an authorization to access such facility, and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection.”

Unfortunately, this statute may provide more questions than answers as it is not discussed in any family law cases in Florida. Therefore, you must turn to the Federal code as well as federal and foreign case law to better analyze issues related to stored communication.

United States Code, 18 U.S.C. §2701, makes it unlawful for someone to intentionally access or exceed authorization to access stored electronic communication. The federal courts have held that the authority to generally access a particular computer’s hard drive does not provide that individual authority to access password protected materials of a joint computer user. If, however, stored communications on a joint computer are not protected by a password, a spouse cannot not be prosecuted for a violation of the statute.

Where the answers become more convoluted is when passwords are “accidentally” discovered.

The New Jersey case of White v. White deals directly with the issue of stored communication. As in Florida, the New Jersey statute related to stored communication is nearly identical to United States Code, 18 U.S.C. §2701. In White, the wife discovered a written letter from the husband’s girlfriend. The wife then had computer investigators access the family computer’s hard drive and obtained stored electronic communication between the husband and his girlfriend.

The husband thought his information was password protected. The court determined that because the wife accessed a joint computer and it was not properly protected by a password, her activities were proper and the evidence was admissible. This case is further evidence that the distinction between stored communication and intercepted communication is of critical importance.

As stated earlier, the Florida courts have not yet weighed in on the accessibility of stored electronic communication, in the family law setting. So where exactly is the line between authorized use of a computer and exceeding authorized access to stored materials on a computer?

The line is particularly blurry in family law matters, as lawyers must deal with joint computers, work computers, passwords both known and unknown to spouses, and many other scenarios. This uncertainty makes it even more important for clients to be made aware of the risks they are undertaking when they access their spouse’s stored electronic communication and the rights they may have if they are a victim of such spying.

Computer-Related Crime #3
Unauthorized Computer Access

The remaining chapter you must understand is Florida Statute §815. This states:

• It shall be considered an offense against a computer user when a party willfully, knowingly, accesses or causes to be accessed any computer, computer system, or computer network without authorization in order to defraud or obtain property.”

Florida Statute §815.06 is relatively new, and the corresponding case law is extremely limited. It is derived from United States Code, 18 U.S.C. §1030. This federal regulation makes it illegal to accesses a computer without authorization or to exceed the scope of authorized use of a computer.

The difference between The Federal Code and the Florida Statute is that the Federal Code includes a restriction against activity that exceeds the scope of a computer user’s authorization. The Florida Statute is based solely on who is an authorized user of a computer or network. Proving or disproving an authorized computer user in marital and family law case can be extremely difficult. You may need to look to the criminal courts for guidance under Florida Statute §815.06.

The case of Rodriguez v. State involved an individual who was convicted for violating Florida Statute §815.06 due to allegedly using a computer at his work place beyond the scope of his employment.

The State conceded that the defendant’s employment level provided him the authority to use his employer’s computer and the network. The State then went on to argue that the defendant violated Florida Statute §815.06 when he accessed and utilized for his own benefit, a part of the computer network reserved solely for his superiors. The defendant appealed his conviction.

The court first held that the defendant was within the scope of his employment when he accessed the computer and the network in question. The court agreed with the State that the defendant accessed a particular computer function within the network that probably exceeded the scope of his employment.

The Court, however, found that this was not a violation of the Florida Statute §815.06. Nowhere in Florida Statute §815.06 is it a violation to exceed the scope of one’s authorized computer access. The defendant’s conviction was therefore overturned.

Based on Rodriguez, the courts may find that in family law matters, a spouse has the right to access another spouse’s individual computer in the home, a password protected network, or web pages so long as the spouse is considered an acceptable user of the computer itself. It may be difficult to prove if a spouse is or is not an authorized user of a computer particularly when the computer is in the family’s home.

How does Chapter §815 apply when the parties reside in the same household but maintain separate computers? How does Chapter §815 apply when there is a work computer involved? What about when the parties have separated?

A violation of Florida Statute §815.06 will be very fact specific in a family law setting as there is not a clear criteria as to who is and who is not an authorized user of a computer.

Admissibility of Evidence

Although a spying spouse may have obtained certain materials in violation of the statutes discussed above, that may not be fatal to your attempt to use the evidence in court. Section §934.06, of the Florida Statutes specifically excludes any evidence obtained from “wire or oral communication” that is considered to be intercepted. Absent is any restriction against the admissibility of intercepted electronic communication.

The O’Brien court acknowledged that intercepted electronic communication is not expressly stated as excludable evidence in the Florida Statues or the Federal Code. The court held that congress intended to leave out of the statute any express exclusion of improperly acquired electronic communication.

Courts have consistently held that the admission of evidence is within the discretion of the courts. A judge’s decision must be viewed in the entire context of the trial. Therefore, the O’Brien court held that it is up to the courts to decide on a case by case basis if intercepted electronic communication should be admitted as evidence.

Although the O’Brien court elected not to permit the illegally obtained the evidence to be admitted, the holding still left the issue wide open for future cases dealing with this issue. For example, the Federal Courts have come down on the issue differently than the O’Brien court.

In Potter v. Havlicek the parties were in the midst of a custody dispute. The husband accessed the wife’s stored communication on her computer. The husband did not install spyware, but he did utilize other computer programs to obtain this information. The husband submitted the evidence he recovered from the computer to the custody evaluator in the divorce proceedings. The Ohio Courts ruled the husband’s actions violated their state statute against unauthorized use of stored communication.

The wife brought a separate civil action against the husband in federal court for injunctive relief to stop the husband’s access to the computer as well as halting his ability to use the information he recovered in the divorce proceedings.

The Federal Court held that the legislature intentionally left electronic communication out of the statute. Consequently, the Federal Court in Potter elected not to suppress the evidence under the statute. The court did acknowledge that the husband’s activity violated state laws, and he was susceptible to civil and/or criminal liability.

There are no other express restrictions against evidence obtained in violation of Florida Statutes Chapter §934 or §815. The courts therefore, have substantial leeway in what they allow in and what they suppress. So it’s up to you to argue the importance of the evidence and the necessity for its admission in each court proceeding.

Penalties

Florida Statutes chapters §934 and §815 are clear when it comes to the penalties for violating these statutes. A violation by a spying spouse could result in jail time, fines and civil law suits. It’s important that clients are aware of these risks as well as the rights afforded to them if they are victim of spying.

A violation of Florida Statute §934.03, interception of electronic communication, shall be considered a third degree felony, which requires a maximum punishment of 5 years in prison, a $5,000 fine.

Florida Statute §934.10, permits a spouse to sue the spying spouse for a violation of §934.03. The statute would permit the non-spying spouse to sue for injunctive relief, as well as for actual damages, punitive damages, attorney’s fees as well as any other equitable relief that may be just and appropriate.

A violation of Florida Statute §934.21, stored communication, is a first degree misdemeanor if the information is used for commercial advantage or gain punishable by a maximum 1 year in prison and $1,000 fine. A violation of Statute §934.12 for purposes other than for commercial gain, is considered a second degree misdemeanor, punishable by 60 days in jail and a $500 fine. The non-spying spouse would be entitled to bring a civil action against the spying spouse for a violation of §934.21. In a civil action, a spouse may be entitled to receive equitable or declaratory relief, actual damages as well as attorney’s fees and costs.

A violation of Florida Statute §815.06, will be considered a third degree felony, carrying with it a maximum 5 years imprisonment, and up to a $5,000 fine. If the spying spouse happens to damage the computer in any way or uses the information recovered to defraud the non-spying spouse, this will be considered a second degree felony, punishable by up to 15 years in prison and a $10,000 fine. Although a violation of §815.06 may be difficult to prove in a family law setting, it is equally important to understand this statute as it carries with it some severe penalties.

Most family law attorneys have encountered computer-related issues, a trend that will likely continue to rise well into the future. Hence, it is important to know and understand these statutes. Because if you lack the understanding of these important laws, your clients may find themselves facing criminal or civil actions, and critical evidence may end up being be inadmissible.

Samuel R. Troy exclusively practices marital and family law with the law firm Troy Legal, P.A. in Boca Raton Florida. He’s the co-chairman of the Young Lawyers Section of the South Palm Beach County Bar Association, and was selected as a 2009 Rising Star by the Florida Super Lawyers Publication.