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10/24/2003
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The Privacy Lawyer: Want The Low-Down On Your Cheating Spouse? Consider That You May Be Breaking The Law

It's tempting to read someone else's E-mail or spy on their online chats. Before you do, Parry Aftab says, consider: What privacy laws are you trampling in your rush for the scoop?

The virtual fly on the wall ... how tempting it would be to read others' E-mails. And many of us give in to that temptation! Sometimes our emotions outweigh our common sense and we find ourselves "telling it to the judge."

What can we do, and what should we do? What's the difference between monitoring employees' surfing and electronic communications and snooping if you suspect that your significant other is cheating? When are E-mails off-limits? Can you read their E-mails if you think your partner is doing some business on the side, or that your assistant is looking for a new job? Can you read your kids' E-mails if you worry that they're talking to strangers online? What about your spouse's ex's E-mails if you're involved in a custody battle for the children?

That's exactly what got Angel Lee into trouble when she wanted to know more about what her spouse's ex was saying in her E-mails. And this month she was sentenced to a 60-day home detention by Judge Richard Matsch (the Colorado federal district court judge who oversaw the Oklahoma City case). Using the logon name and password she had obtained without authorization, she accessed the former wife's E-mail account, reading at least 215 E-mails. The snooping was instigated by a very heated divorce and custody case. Ms. Lee pleaded guilty in March of this year, and the sentencing was delayed until now. Judge Matsch, known for being a tough, "no-nonsense" judge, opted for an in-home detention because of the children living with Ms. Lee. While criminal prosecution of these kinds of cases is rare, I suspect that we'll see substantial increases over the next few years. As more people use the Internet for communication, and resources and software applications become more readily available teaching you how to spy on others online, this will become a serious problem. Some think it is already.

Divorce lawyers around the United States see online communications as a fruitful source of evidence of infidelity and wrongful conduct. They also see it as a serious risk for their clients who have been accused of infidelity and wrongful conduct. Private investigators who used to travel with cameras in hand staking out hotel rooms now do their stakeouts in cybertime from computer terminals.

In my role as executive director of WiredSafety.org, the world's largest online safety and help group, I receive hundreds of requests weekly from spouses, people involved in faltering romantic relationships, and even other lawyers seeking legal methods of cybersleuthing. As a privacy lawyer, my answer is always the same. "Not everyone we suspect of cheating is always cheating. If you snoop and the other person finds out, there's very little chance you can salvage trust or even the relationship. If you are going to move ahead anyway, tread carefully ... the laws are complicated and broad. While you may find out information about your spouse or girlfriend, you may also find yourself violating the wiretapping laws. And whatever 'evidence' you do find may not be admissible in a court of law. Finally, what is good for the goose is good for the gander ... so look out for someone trying to spy on you!" (Whew! My kids tell me my lectures to people who ask me about this online are second only to my lectures to them...)

The prime law in this area is the Electronic Communications Privacy Act of 1986, an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 commonly known as the federal "wiretap law." There are also similar state laws, most of which mirror the ECPA. The ECPA was adopted initially to govern third-party interceptions of electronic communications, not to govern a boyfriend's right to access his girlfriend's E-mails. It provides civil and criminal penalties for any person who intentionally intercepts, uses, or discloses "any wire, oral, or electronic communication." Electronic communication is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic, or photo-optical system that affects interstate or foreign commerce...."

The ECPA also prohibits the use or recitation of information obtained from any interception. Most of the cases developed under the ECPA involve wiretapping of telephone and E-mail communications by law enforcement. Civilly, most of the case law, until recently, involved telephone monitoring. Under the ECPA, though, the owner of the communication equipment and services can usually monitor activities from that equipment. And in the marital setting, the courts have generally refused to review unauthorized access of the spouses' electronic communications. (This unwillingness to review possible violations probably wouldn't apply to people merely living together or involved in a relationship and not living together.)

In certain states where they exist, the person being spied upon may be able to seek relief under the common-law tort of invasion of privacy. Although many state courts have held that no such tort exists, the tort generally requires an intentional intrusion, "physical or otherwise, upon the solitude or seclusion of another upon his private affairs, or concerns ... if the intrusion would be highly offensive to a reasonable person."

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