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Snooping on Your Spouse's Email Can Be a Wiretap Act Violation, 7th Rules

By Casey C. Sullivan, Esq. on December 30, 2016 | Last updated on March 21, 2019

Listen up, suspicious husbands, nosy wives, and exes who just can't let go: unpermitted snooping into your partner's email may be a violation of the federal Wiretapping and Electronic Surveillance Act. That is, according to a recent decision from the Seventh Circuit.

The case involves a contentious divorce between Paula and Barry Epstein. Paula accused Barry of "serial infidelity." Barry demanded proof. Much to his surprise, Paula handed over Barry's own, purloined emails. Barry sued, saying that his soon-to-be ex-wife had violated the Wiretap Act. It was an interpretation of the act the Seventh Circuit endorsed, though it noted that "Congress probably didn't anticipate" the use of the Wiretap Act "as a tactical weapon in a divorce proceeding."

Barry's Stolen Emails

Barry's Wiretap Act claims came about as part of his long and contention divorce proceedings with Paula, proceedings that were initiated in 2011 and which still haven't concluded. During discovery, Barry's attorney requested documents relating to Paula's accusations of infidelity.

In response, Paula's attorney produced a series of emails between Barry and women who weren't his wife. Those emails had been forwarded from Barry's email account to Paula's. As the Judge Diane S. Sykes writes for the Seventh Circuit:

This came as a shock to Barry; he inferred from this discovery response that Paula must have secretly placed a "rule" on his email accounts automatically forwarding his messages to her.

But When Were the Emails Intercepted?

At issue before the Seventh was whether Paula's interception of the email could be considered a Wiretap Act violation. That act makes it illegal to intentionally intercept "any wire, oral, or electronic communication" and prohibits the disclosure or use of those unlawfully intercepted communications.

The district court had dismissed Barry's claims during the pleadings stage, finding that the interceptions hadn't been "contemporaneous" with the communication -- that is, that the interception occurred during the transmission, rather than afterwards when those emails had been stored on a server. Requiring contemporaneous interception is an interpretation of the act that has been adopted by the Third, Fifth, Ninth, and Eleventh Circuits, but which the Seventh hasn't taken a position on. (The court declined to do so in this ruling as well.)

Even if the Wiretap Act covered only contemporaneous interceptions, Barry's claims would still stand, the Seventh determined. That's because his complaint alleged that the emails were forwarded to Paula's account at the same time they were received by Barry's email servers.

Difficulties Determining the Time of Interception

The district court had looked at the time differences between when emails were received by Barry and sent to Paula and found that the shortest interval between them was three hours -- too long to be considered contemporaneous in the district court's eyes.

But that, the Seventh explained, was the wrong approach. It turned to its 2010 Szymuszkiewicz decision to explain that the interception of an email "need not occur at the time the wrongdoer receives the email." Rather, the copying at the server can be an illegal interception. "We do not know how Paula's auto-forwarding rule worked," the court noted, but it could have copied Barry's emails immediately.

Further, for emails Barry sent, the transmission is finished when those emails reach they are received by their intended recipient, something that can't be determined yet.

Paula's Lawyer Gets Off Scot-Free

The Seventh revived Barry's Wiretap Act claims against Paula, but affirmed the dismissal of his claims against Paula's lawyer. Barry had also accused his wife's attorney of violating the Wiretap Act by disclosing and using the ill-gotten emails. The Seventh Circuit wasn't buying it.

Barry invited the email's disclosure when he requested them in discovery, the court explained, and the Act "doesn't prohibit the interception of electronic communications with consent." Further, Barry's complaint doesn't allege that Paula's lawyer actually used the emails, only that he intended to. The Act "does not prohibit inchoate intent," the Seventh found.

The case will now go back to district court, where Paula's email-forwarding will be more fully explored.

Posner: Adultery Is a Crime Undeserving of Privacy Protections

The court's ruling earned a special note from Judge Posner, who wrote a separate concurring opinion to wonder whether the Act should be interpreted to cover such an invasion of privacy. "Obviously, not all claims of privacy are or should be protected by law," Posner wrote. If privacy protects facts that might reveal disreputable acts, Posner is not so sure that such information should be protected.

"The motive of concealment in such a case is understandable," he wrote, "but if the concealment is of genuine misconduct, I am unclear why it should be protected by the law."

Here, Barry sought to hide his infidelity. "I don't understand why federal, or for that matter state, law should protect an interest so lacking in social benefit," Posner explained, "especially when one considers that adultery remains a crime in 20 of the nation's 50 states".

Paula's email interception can, indeed, be praised. She could be compared to a bounty hunter, Posner proposes, someone "who promotes a governmental interest".

"She has uncovered criminal conduct hurtful to herself," the judge writes, "and deserves compensation, such as a more generous settlement in her divorce proceeding."

As for Barry's Wiretap Act suit, it is "more than a pure waste of judicial resources." It's an attempt to "reward" Barry "for concealing criminal activity." Had that fact been raised by the parties, he would have ruled that the Wiretap Act was inapplicable in such circumstances, Posner explained.

In the meantime, readers, play it safe and stop snooping on your spouse's email.

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