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FL Court Rules Against Spouse-Installed Spyware
idobi writes "A Florida court ruled that it was illegal for a wife to install spyware on her husband's computer, in order to catch him in an extramarital affair. The three judge panel barred the woman from using the chat records from being introduced as evidence in the divorce proceedings. The court ruled that the software, Spector, violated Florida's wiretapping law - which states that it is criminal to 'intentionally intercept' any 'electronic communication.'"
Many states have different laws regarding what is legal in terms of wiretapping; some allow one party to record a phone call only if all parties consent, and others, famously D.C., for instance, do not.
Most all of them recognize that, outside of law enforcement activity a 3rd party isn't permitted to eavesdrop.
One thing that occurs to me is that there have been a spate of decisions in a law enforcement context to the effect that electronic communications like email lack the same "expectation of privacy" that phone calls and postal mail do. Whereas this seems to acknowledge that chat serves a similar function to the phone, just with distinct technology, and thus extends the same protection.
The article briefly mentioned that while this wife wasn't allowed to wiretap her husband, her husband's employer is (while he's at work, anyway). I thought this was funny, the different standards between the workplace and the home. There are a variety of justifications for wiretapping your employees - something that, as far as I know in most states, employers have carte blanche to do - but the interesting thing is that when you start thinking about them, most of them apply to the spouse as well.
At work, you use your employer's computer, in your employer's building (their machine, their house), but the wife jointly owns both. At work, you may make the argument that wiretapping is necessary to insure reliability and integrity of your business, but the spouse can argue the same is necessary to insure the integrity of the marriage. Both will claim: "What's their privacy for anyway? Do they have something to hide?"
The only strong argument I can think of for surveillance by employers is that the employee "consents." I suppose spouses don't have the same leverage to compel "consent" to eavesdropping as employers do.
Ugly business, trying to get a job that will promise to respect your privacy. You can always "just work somewhere else," but there are quite a few things we already prevent employers from doing because "somewhere else" is nowhere if we don't.
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I know in some states the recording has to be known by at least one involved party, and some states require that both are made aware. In this case, it seems that neither party involved in the communications was aware of what was functionally a wiretap. The ruling, while good for privacy, seems extremely frustrating for those hoping to use the logs as evidence.
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So, if I think someone is gaining illegal access to my computer while I'm not around, I can't install a keylogger to figure out who it is?
This case is the equivalent of a woman hiding a camera in her own bedroom to catch her husband in the act, only to be told it's inadmissable because they didn't know they were being taped.
There need to be reasonable limits to this sort of stuff. Soon we won't be able to submit any evidence at all that was gathered without the permission of the accused...
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The court ruled that the software, Spector, violated Florida's wiretapping law - which states that it is criminal to 'intentionally intercept' any 'electronic communication.'"
So, does this apply to other, more illegitimate spyware as well, then?
I hate how sometimes this comes up to near something personal. It shows how screwed up people are. My wife was searching sex search sites recently and I only discovered after some recent oddities when trying to fix her computer. It definitely woke up the relationship. Trust is so hard to rebuild though.
I spoke to a lawyer and in courts.. it ends up being next to useless. You may as well just leave the relationship... that being said.. it's not easy.
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So I guess the question in how far can you take this? Does this automatically mean that any spyware is wiretapping? After all, most adware does observe and report a person's internet browsing activity. But I'm sure some people would argue it's a gray line, because is sending URLs really a form of electronic communication? Does spyware 'listen' to enough human-inteprettable language to be considered a wiretap?
In a phone analogy, it's more like listening in on which phone number is being dialed, not the conversation. But in a lot of instances there is more information, thanks to the query string. A URL can tell an adware program what books someone is looking at on Amazon, or what they are searching for at Google.
Just thinking out loud....
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I don't think it was the act of installing it that was the issue. She was capturing his conversations electronically. That is what violated the law, and that was the reason the conversations were not usable in court.
It shouldn't matter whose computer he was using, you aren't allowed to electronically intercept communications under Florida law. The how isn't important I don't think.
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No, to quote the article:
But Grincewicz concluded that "because the spyware installed by the wife intercepted the electronic communication contemporaneously with transmission, copied it and routed the copy to a file in the computer's hard drive, the electronic communications were intercepted in violation of the Florida Act."
It sounds like even if it had been a complete stranger using the woman's computer, it would have been illegal to record the conversation.
Which is precisely why the ruling is good for privacy. You should not be allowed to use logs of private conversations as evidence if the logs are obtained illegally.