Suing Based on Spyware?

• Citation: Vol. 3 No. 3
• Publication year: 2007

Shidler Journal of Law, Commerce & Technology 3 Shidler J. L. Com. & Tech. 9 Volume 3, Issue 3, Winter 2007

Litigation

Cite as: Shan Sivalingam, Suing Based on Spyware? Admissibility of Evidence Obtained from Spyware in Violation of Federal and State Wiretap Laws, 3 Shidler J. L. Com. & Tech. 9 (Feb. 14, 2007), at [http://www.lctjournal.washington.edu/Vol3/a009Sivalingam.html]

Suing Based on Spyware? Admissibility of Evidence Obtained from Spyware in Violation of Federal and State Wiretap Laws

O'Brien v. O'Brien as a Paradigmatic Case

Shan Sivalingam [fn1]

Abstract

Early in 2005, a Florida intermediate appellate court ruled that a trial court adjudicating a divorce proceeding had properly excluded evidence that the wife obtained by installing a spyware program on the husband's computer. The court held that the evidence was an intercepted electronic communication that violated a Florida statute modeled after the Federal Wiretap Act. The Florida court ruled that exclusion fell properly within the discretion of the trial court, despite the fact that the relevant Florida statute did not contain an exclusionary rule for intercepted electronic communications. This Article provides a short overview of the federal and state prohibitions on intercepting electronic communications before examining the Florida court's analysis of how the spyware violated state law. The Article will also examine the scope of the court's holding and whether information obtained from spyware could ever be admissible in court.

Table of Contents

Introduction Federal and State Statutes Prohibiting Interception of Electronic Communications Overview of Spyware i. What is Spyware? ii. Direct Legislative Prohibitions on Spyware Facts of O'Brien The Court's Reasoning Potential Impact of the Court's Decision i. Factual Distinctions of O'Brien ii. Legal Rationale for Not Adopting a Blanket Exclusionary Rule iii. Impact of United States v. Councilman Conclusion Practice Pointers

Introduction

[1] Early in 2005, the Florida District Court of Appeal (Fifth District) issued its ruling in O'Brien v. O'Brien. [fn2] The court affirmed a divorce court's exclusion of evidence that the wife obtained through the use of spyware that she had installed on her husband's computer. [fn3] The court found that the wife had illegally intercepted electronic communications in violation of Florida's Security of Communications Act (hereinafter "SOCA"). [fn4] The court based its decision on two factors: (1) the Florida Legislature had modeled SOCA after provisions in the Federal Wiretap Act and (2) federal precedent interpreting the federal statute supported a finding of "interception." [fn5] The court excluded the evidence on the ground that the statutory violation justified the trial judge's exercise of discretion to exclude the evidence. [fn6]

[2] The court's holding does not explicitly create a blanket exclusionary rule for illegally intercepted electronic communications, but it is susceptible to such an interpretation. Traditionally, courts have held that illegally obtained communications are inadmissible as evidence. However, these holdings pre-date the federal and state statutory prohibitions on interception of electronic communications; courts could not have anticipated the current ubiquitous use of electronic means of communication. Moreover, spyware may provide access to information that cannot be obtained by other means. Because these considerations require a complicated cost/benefit analysis that is within the proper function of Congress and the state legislatures, courts may need to take a case-by-case approach in evaluating whether equity supports admission or exclusion of such evidence.Federal and State Statutes Prohibiting Interception of Electronic Communications

Federal and State Statutes Prohibiting Interception of Electronic Communications

[3] Federal statutes have made it illegal to intercept wire and oral communications. [fn7] With the proliferation of electronic technology, the old framework for making these interceptions required updating. In 1986, Congress enacted the Electronic Communications Privacy Act ("ECPA"), thereby amending the Federal Wiretap Act. [fn8] As amended by ECPA, the Federal Wiretap Act (or the "Wiretap Act") imposes criminal liability on a person who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." [fn9] Forty-nine states and the District of Columbia have their own wiretap statutes - many with language virtually identical to the federal statute. [fn10] As discussed below, the Federal Wiretap Act and the parallel state anti-interception statutes do not require the exclusion from evidence of intercepted electronic communications. [fn11]Overview of Spywarei. What is Spyware?

Overview of Spyware

i. What is Spyware?

[4] The definition of spyware changes as fast as programmers can develop new software. Generally, spyware is software installed on a computer in order to monitor the target user's computer activity without their knowledge. [fn12] Spyware usually targets e-mail and chat room activity. However, spyware can record everything the user does on the computer, including financial record keeping, the preparation of documents in a word-processing program, or the updating of business records. [fn13] Some spyware programs are used to gather personal identifying information such as passwords, credit card numbers, and Social Security numbers, usually for purposes of fraud and identity theft. [fn14]

[5] Many spyware programs act like cameras, taking a picture of whatever is on the screen every few seconds. [fn15] These programs may send log files of the activity to an e-mail address where the spy can play back the sessions. [fn16] Another significant type of spyware captures keystrokes from the target computer, enabling the spy to discover passwords and other confidential information of the target user.

[6] Spyware is most commonly used in a situation where the spy and the target have no prior relationship. A typical scenario involves the computer user being asked to click "yes" or "no" to some prompt in an Internet pop-up window, where either choice results in the installation of spyware on the user's computer. [fn17] Or spyware may be surreptitiously installed along with a program that the user intentionally downloads off of the Internet. [fn18] Spyware is used to track information - either for marketing purposes or for more illicit purposes such as identity theft. [fn19]ii. Direct Legislative Prohibitions on Spyware

ii. Direct Legislative Prohibitions on Spyware

[7] As of September 2006, there is no federal anti-spyware law. Different pieces of anti-spyware legislation have passed the House of Representatives but have not proceeded any further. At the state level, as of September 2006, at least fifteen...