A Spouse’s Unauthorized Access to Email Could Violate Wiretap Act

While the following article deals with divorce, our readers may consider it terms of accessing emails or online information of a deceased spouse or family member and the potential criminal liability that may be associated with accessing digital assets.

Federal wiretapping laws usually do not mix with state divorce proceedings.  However, these laws became a central issue during the divorce of Paula Epstein from her husband Barry Epstein in Illinois.  The issue is, did Ms. Epstein violate federal wiretapping laws when she put an auto-forward on her husband’s email account so she could read his emails.

Barry Epstein sued his wife under federal law while the couple was in the process of divorcing.  Paula accused her husband of serial infidelity.  In response, Barry’s attorney asked Paula for any documents and evidence she had that was related to the accusation.  Paula complied and produced copies of the incriminating emails between Barry and several other women.  This discovery response caused Barry to sue her under federal law.

Barry argued that Paula violated the Wiretap Act by secretly placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to Paula.  Barry also claimed Paula’s lawyer violated the Act by disclosing the intercepted emails.  The courts dismissed this claim because the attorney could not be liable for disclosing Barry’s emails in response to his discovery request.

Background Information

Paula and Barry married in 1970, and Paula filed for divorce in County Circuit Court under the accusation of infidelity in 2011.  The divorced has continued to drag on since it was filed and remains unresolved.  Barry filed a federal suit against Paula under 18 U.S.C. section 2520 after Paula responded to Barry’s discovery request.

The Wiretap Act makes in unlawful to “intentionally intercept or endeavor to intercept any wire, oral, or electronic communication.”  Both parties disputed if the law was broken, and debated whether the Wiretap Act requires a “contemporaneous” interception of an electronic communication.  In simpler terms, the debate was whether the law forbids an interception that occurs during transmission rather than after the electronic message has come to rest on a computer system.

Several circuits have held the Wiretap Act only covers contemporaneous interceptions, which is understood as the act of acquiring an electronic communication in transit.   This would differ from the acquiring of stored electronic communications, which is addressed by the Stored Communications Act.

Barry’s amended complaint alleged that Paula’s interception of his emails “was contemporaneous with the transmission because the messages destined for Barry was forwarded to Paula’s emails at the same time they were received by Barry’s email servers.

The appeal decided that Barry’s claim for wiring tapping could continue against his wife, although the court did offer some hesitation that these federal laws were not drafted with divorce proceedings in mind.  This decision should bring about some caution to those that are looking to eavesdrop on spouses or acquire information from a spouse for a divorce proceeding.

For more information on how this decision may affect divorces here in Florida contact the Jacksonville divorce lawyers at The Law Office of David M. Goldman PLLC today.

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