Sex, lies and e-mails: Marriage and divorce in the age of the World Wide Web

Posted December 23, 2008

Sex, lies and e-mails: Marriage and divorce in the age of the World Wide Web

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By Lauren Taylor Arnette, Ward and Smith, P.A.

Editor's Note: Lauren Taylor Arnette is a member of the Family Law and Litigation Practice Groups at Ward and Smith, P.A.

Quick and Easy Communication

As our day-to-day lives become more hectic, we continue to look for ways to save time and get things done evermore quickly. Because typing an e-mail, sending a text message, or posting a comment on a friend's Facebook® wall can be done quickly, many people nowadays opt for electronic messages as the easiest way to communicate.

While these communications seem to disappear into cyberspace once the "send" button is pushed, the truth is that almost all electronic communications undergo a transmission process and are stored somewhere on at least a semi-permanent basis, whether it be on a public or private server or on the hard drive of your personal computer. Disclosure of these electronic communications can have lasting effects that neither the sender nor the recipient ever intended.

The use of computer forensic science to find and access electronic communications has become more and more prevalent among family law attorneys as a method to prove allegations made by husbands and wives in divorce and/or custody proceedings. Computer forensic science is being used to prove matters ranging from the infidelity of one spouse to the financial misconduct of another. Make no mistake: your electronic communications can be used against you. "Status updates," "moods," or "wall postings" to friends on MySpace® and Facebook® pages even have been used to prove that testimony is untruthful.

What is Electronic Eavesdropping?

Electronic eavesdropping is the interception of an electronic communication during the transmission process or after it has been delivered and reached the storage phase in its electronic life. Think of eavesdropping on someone else's conversation – you pick up the telephone and there are two people already talking. To the extent that you listen to the conversation, you are eavesdropping. This principle is the same for all electronic communications. If you are a third party who is not an intended recipient of the information which is being passed between a sender and a recipient who do not know that you are listening to, or reading, their communication, you are probably "eavesdropping."

While interception of a communication during transmission is the most common understanding of "eavesdropping," in fact, the most common scenario involves access to an e-mail or other electronic communication after the intended recipient has read the e-mail.

Is Eavesdropping Legal?

Electronic eavesdropping by a spouse can lead to criminal and civil penalties. The Federal Electronic Communications Privacy Act ("ECPA") prohibits the intentional interception, or the procurement of another to intercept, any wire, oral, or electronic communication, and the unauthorized access of any wire or electronic communication while in storage. Legislative history surrounding the ECPA suggests that it was Congress's intent to impose harsher punishment for interception of an electronic communication during transmission than for intentional access in the storage phase. Nevertheless, there are severe civil and criminal penalties for any violation of the ECPA including:

• Damages for actual harm done plus additional punitive damages intended solely to punish violators;
• Required payment of the attorneys' fees of the opposing party;
• Prohibitions on presenting certain evidence in court; and,
• Imprisonment for up to five years.

In addition to the federal ECPA, North Carolina statutes make the willful interception, use, or disclosure of the contents of any wire, oral, or electronic communication "without the consent of at least one party to the communication" a criminal offense. Violation of this statute is a felony, and violators can be sued in a civil action for invasion of privacy as well.

The Key: Is there a Reasonable Expectation of Privacy?

In order for the interception of, or access to, an electronic communication to rise to the level of a violation of the ECPA, a party to the communication must have a reasonable expectation that the communication will be, and will remain, private. It is important to understand that a user of electronic communication devices can waive any reasonable expectation of privacy by the user's own acts. Courts look at each set of facts on a case-by-case basis to determine whether a purported victim of an eavesdropping possessed a reasonable expectation of privacy, and whether or not the interception of, or access to, an electronic communication has violated the ECPA or state law as a result.

For example, consider the person in front of you in the grocery store checkout line who insists on talking on a mobile phone. While telephone conversations generally enjoy a reasonable expectation of privacy, the checkout gabber has "waived" any reasonable expectation of privacy as to the statements you overhear. E-mail and Facebook® accounts may require a password to log on and, thus, initially enjoy a reasonable expectation of privacy, but the acts of giving the password to a third party and allowing that third party regular access to those accounts may provide enough evidence for a court to conclude that the owner no longer possessed any reasonable expectation of privacy in the electronic communications posted on, or generated from, those accounts. Likewise, messages sent or received on a "family" or employer-owned computer and accessible by family members, co-workers, or the employer, likely do not enjoy protection from wandering eyes. In the examples above, it would be difficult to argue that there was a reasonable expectation of privacy, if any expectation of privacy at all.

The reality is that marital misconduct is proven on a regular basis using evidence obtained through accessing stored electronic communications based on evidence that the communication lacked a reasonable expectation of privacy.

Conclusion

The message is clear: don't let the ease and efficiency of electronic communications be used against you in the courtroom. If you're going through a divorce or an ugly custody battle, or anticipating either, resist the urge to post thoughts or messages online that you would not want to hear read aloud in an open courtroom. It could come back to haunt you and your pocketbook.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Lauren Taylor Arnette practices in the Family Law and Litigation Practice Groups, where she represents clients in a variety of domestic matters. Comments or questions may be sent to lta@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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