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April 3, 2007

Husband's Electronic Spying Not Actionable Under ECPA in Divorce Case

An interesting case came out of the Southern District of Ohio on Valentine's day.  It involves divorce and the Electronic Communications Privacy Act, specifically 18 USC 2511.  The defendant in this case is Jeffery Havlicek, who used keylogging and screen capture software on the home computer to retrieve personal communications of his wife Amy.  The plaintiff is Christina Potter, some of whose mail and communications were intercepted by Jeffrey.  Christina applied to the court for a preliminary injunction to prevent Jeffery from introducing captured communications as evidence in the divorce proceeding between Jeffery and Amy.

The court analyzed the conduct under ECPA and concluded that the suppression provision covers illegally intercepted wire and oral communications from the courtroom, but does not mention electronic communications.  Citing other decisions which note that the act has been amended in several places to include electronic communication but not in the suppression section, the court conclude that  Congress intentionally omitted this category from suppression.  This point and a potential suppression of defendant's free speech rights led the court to deny the issuance of the injunction.  The judge did allow, however, that defendant may be liable under other civil and criminal laws.

There are a few other twists to the case, such as the attempt by defendant suggesting his wife consented to the surveillance by using the remember this password feature.  The court said no to that one.  The court also ordered the defendant to turn over copies of the collected evidence he intended to use in the divorce proceedings to plaintiff.  This is probably something Havlicek wanted to prevent to get maximum use at his trial in Ohio state court. 

The case is Potter v. Havlicek, Docket 3:06-cv-211, Southern District of Ohio, February 14, 2007.  The Westlaw citation is 2007 WL 539534.  The opinion is listed as a slip copy with no designation as to whether it will be published.

April 3, 2007 | Permalink


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This kind of investigating should be allowed

Posted by: C Martin | Jan 15, 2008 10:27:54 PM

If this is not allowed then there is no protection for the wronged party. The straying spouse and third party can conspire to commit the crime of adultery via electronic communication. The wronged party has no legal recourse if this is the case other than to sue for divorceand attempt to collect email from personal and corporate accounts. This will be beyond the financial ability of most plaintiffs.

Posted by: Socrates | Jan 15, 2009 6:58:41 AM

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