Using Electronic Evidence and Recordings in Your Family Law Case Silverman , Vorhis & Doan Attorneys Gainesville Florida

Using Electronic Evidence and Recordings in Your Family Law Case

Posted by: Joshua Silverman
January 06, 2011
Topic: Electronic Evidence - Family Law in the Digital Age

In divorce cases, emails, instantmessages, text messages, recorded telephone conversations and videotape areuseful evidence, as each can help prove legally relevant activity by a spouseor a parent. Electronic communications and video/audio tape can help proveanything from hidden income and assets, to extramarital affairs, to someone'sparenting skills (or lack thereof).

However, while such evidence mayhelp, gathering it can leave someone open to civil liability, criminal charges,fines and even jail time. Unfortunately, the relevant law defining what is andis not legal concerning electronic communications and privacy is far from clear.This article will attempt to clear up some of the confusion surrounding thisrelatively new area of law as it applies to family law. Of course, as always,it is best to have a professional attorney advising you on your legal rights.If you're unsure what those rights are, or you don't know whether you'reoperating within the law, call or stop by for a free consultation with one of the experienced family lawattorneys at The Law Office of Silverman, Vorhis & Doan.

Florida Statute 934.03 prohibits "interception of any wire, oral, or electroniccommunications." It also prohibits using or disclosing such communicationswithout the consent of those whose communications are intercepted. Given thestatutory language, to understand whether one is violating the law, one mustknow what it means to "intercept" a communication. In this case, "intercepted"means the communication must have been "in transit" at the time it is recordedor taken by a party other than the one for whom the communication is intended.In other words, as one court has held, "in order to be intercepted,[communication] must be acquired contemporaneously with transmission," or atthe same time the communication is taking place. If there is even a miniscule amount of time between thecommunication and the time it is taken by a third party, that communication isnot deemed to have been "intercepted," because the communication is said to be"stored."

Asan example, one court looked at whether retrieval of emails was an"interception" of a communication, or whether the emails were considered"stored." The court held that, "There is only a narrowwindow during which an E-mail interception may occur - the seconds ormilliseconds before which a newly composed message is saves to any temporarylocation following a send command." Therefore, while recording a telephoneconversation without the consent of the other participants is likely aviolation (a third degree felony, subjecting the offender to up to five yearsin prison and a $5,000 fine), retrieving emails that have been stored on acomputer or on the Internet is probably not a violation.

Note the distinction. Retrievingelectronic communications after they have been "stored" will likely not violate934.03. However, accessing them while they are "in transit" from the sender tothe recipient will. In one Florida case, a wife installed on her computersoftware designed to intercept communications between her husband and a thirdparty. The software would make a copy of any communications as they werereceived, and then send the copy to the spouse's email. A court held that thesoftware did, in fact, "intercept" a communication covered by 934.03. As aresult, the wife unable to use the communications as evidence in the divorceproceeding, but she was subject to civil and criminal liability as well.

However, while retrieving saved emailsprobably doesn't violate 934.03, one probably should not start trying to hackinto a spouse's email or other stored information. If successful, the offendermight be guilty of violating F.S. 934.21,which makes it a crime to access stored communications without authorization.Again, it is not exactly clear what activities are prohibited under that law.However, at least one court has interpreted the federal law on which theFlorida statute was modeled, and has given some guidance about what kinds ofactivities might fall under the law.

For instance, the court held thatgeneral access to a computer does not give authorization to electroniccommunications on that computer, if those communications are protected bypassword. In other words, just because a person owns a computer, or haspermission to use it, does not mean he or she may access data protected bypassword on that computer (e.g., emails). If you gain access to suchpassword-protected data, without authorization, you may be violating 934.21.However, if the data are not password-protected, then accessing them wouldlikely not violate the law. It should be noted that 934.21 has not beeninterpreted in any family law cases (at least at the appellate level), and itremains unclear how courts will treat that issue in the family law context.

In one recent case handled by The LawOffice of Silverman, Vorhis & Doan, we represented a husband and father ina contested child custody case. The wifeand mother tried to use e-mails that her husband had sent and received asevidence against him. She had obtainedthose e-mails by accessing his e-mail account without his permission. The judge ultimately did not allow the wifeto use those e-mails, but it was a very close call.

The uncertainty surrounding that lawmakes it even more imperative that you have a professional advising you on yourrights and the limits of exercising them in the divorce context. Don't subjectyourself to criminal and civil liability because you didn't understand the law.

While 934.21 prohibits accessingpassword-protected data, Florida Statute815.06 makes it a crime to access a computer or computer network withoutauthorization. Obviously, in the family law context it might be extremelydifficult to prove that a spouse did not have authorization to use a familycomputer. Like 934.21, the statute has not been interpreted often in thecontext of family law, so the implications of the law remain unclear. Again, toensure you are protected from liability, consult one of theexperienced family law attorneys at The Law Office of Silverman, Vorhis &Doan before using a computer to gather any evidence.

What about video and audio recordings?In Florida, all parties must consent to the recording of any electroniccommunication. However, non-electronic communication requires consent only ifthe party being recorded has a reasonable expectation of privacy. In otherwords, if the person being recorded is in public (e.g., a public park, a streetcorner), then consent is not necessary. However, if the person recorded is inprivate quarters (e.g., restrooms, locker rooms, hotel rooms), then consentwould be required before one can legally record them on video or audio tape.

Whether a person has a "reasonableexpectation of privacy" or has given "consent" is largely dependent on thefacts of the case. Generally, a judge will have to determine whether thecircumstances were such that consent was required, or whether an audio or videorecording was legal. Again, to avoid becoming entangled in legal questions,it's best to rely on the advice of an attorney rather than determining on yourown whether you're violating the law.

Intercepting communications, accessingpassword-protected data and recording a third party are not the only means ofgaining access to another's private life. For instance, if a husband owns acar, and his wife uses the car for work, can he legally install a GPS trackingdevice and monitor her movements? Unfortunately, the answer, like many legalquestions, is "it depends."

Federal law specifically exempts trackingdevices from being considered "wiretaps," which are otherwise illegal. However,in Florida one can be found liable for "intrusion upon seclusion" if a courtfinds that the tracking device violated a third party's "sphere of privacy." Thecompeting consideration, of course, is the freedom to track one's own property(for instance, the husband could claim the tracking device is designed toprevent automobile theft). Because of these competing considerations, there isno clear answer to whether it is legal or illegal in all cases to use suchdevices on one's personal property.

Laws relating to the privacy rights ofthird parties are relatively new phenomena. As a result, the implications ofthose laws are often vague and unclear. During a divorce proceeding, it is alltoo easy to run afoul of the law by trying to gather evidence of inappropriateactivity of a spouse using questionable means. Rather than subjecting yourselfto civil and criminal liability, call or stop by for a free consultation andallow the family lawattorneys at The Law Office of Silverman, Vorhis & Doan to protect youand your rights.

It's what we do.