TO CATCH A SNOOPING SPOUSE: REEVALUATING THE ROOTS OF THE SPOUSAL WIRETAP EXCEPTION IN THE DIGITAL AGE.

• Author: Ramirez, Karli

INTRODUCTION 1094 I. THE SPOUSAL WIRETAP EXCEPTION 1097 A. The Wiretap Act 1097 1. Legislative History 1097 2. Language of the Act 1098 B. The Spousal Wiretap Exception 1099 1. Origins 1100 2. Current Standing Case Law 1101 II. AN ANCIENT EXCEPTION 1103 A. United States' Evolution of Rights Within the Marital Relationship 1104 1. Coverture 1105 2. InterspousalTort Immunity 1109 3. The Domestic Relations Exception B Evolution of Privacy Law 1115 1. Constitutional and Spousal 1115 2. Tort 1117 III. CONTEMPORARY CONSIDERATIONS 1119 A Social Marriage Developments 1119 B Developments in the Digital Age 1120 IV. ELIMINATING THE EXCEPTION FOR GOOD: STATE WIRETAP ACT CODIFICATION 1122 CoNCLUSION 1125 INTRODUCTION

Marriage is, and continues to be, a reactive institution. Although the origins of marriage date back over 6000 years, (1) the marital relationship is continuously shaped by widely held social, economic, and legal views regarding the rights available to those party to the union. As these views change over time, the way partners interact with one another privately and publicly also changes.

While the modern institution of marriage looks quite different in our nation than it did fifty years ago because of Supreme Court decisions championing marriage equality, (2) there is one specific group whose position within the spousal relationship also begs focus: women. Women were long subject to subservient positions in their marital relationships; even with the passage of the Nineteenth Amendment, (3) the newfound political equality between men and women did not automatically lead to the dissolution of female subordination. Overt social and legal subordination of women was the norm until the latter half of the twentieth century when the 1960s women's rights movement began. (4) The culprit for this treatment was common-law American coverture, where a female's legal status was absorbed into her husband's upon marriage, including her ability to sue or own property. (5) As a result, women were legally and financially beholden to their spouses.

Coverture laws began to fade in the late nineteenth century, but some states held on to remnants of the coverture legal structure well into the twentieth. (6) Following the legal dissolution of coverture in the United States, and seemingly unrelated, was the criminalization of wiretapping in 1968 with the Federal Wiretap Act, (7) which codified Congress' recognition of developments in surveillance technology becoming generally accessible to non-law-enforcement personnel. Although the language of the Wiretap Act granted explicit exemptions for certain wiretappers, a handful of lower federal court cases decided in subsequent years offered another exemption: one for spouses. (8) This exemption allowed for one spouse to intercept the private communications of the other and avoid both criminal and civil liability under the Wiretap Act. This federal common law doctrine, known as the "spousal exception" to the Federal Wiretap Act, still stands as good law in two Circuit Courts of Appeals: the Fifth and the Second. (9)

The spousal wiretap exception reflects longstanding assumptions about the marital relationship held at the time the Federal Wiretap Act was enacted. I first argue that coverture influenced early decisions regarding the spousal wiretap exception, which effectively allowed a husband to own his wife's private communications and use them however he chose, including to her own detriment in family court proceedings. The notion that a wife's private communications are her husband's property echoes common-law coverture, which held that upon marriage, a wife's legal identity and her personal property come under her husband's control. Therefore, a spousal wiretap exception reflects the antiquated notion of marital unity: that a wife does not have a right to her own personal communications. In effect, the spousal exception allows a husband to legally use the wife's private communications as evidence in contentious court proceedings, just as husbands could use their wives' property as their own under coverture.

Similarly, the law of individual privacy has changed drastically since the spousal wiretap exception decisions. In the mid-twentieth century, constitutional privacy law shifted from recognizing privacy only within the marital relationship to recognizing that individuals retained privacy even after marriage. (10) Due to coverture's lingering impacts, marital privacy initially remained a unified right, and individual privacy was seen as being reserved for unmarried individuals. (11) The spousal exception to the Wiretap Act flouts modern privacy law, which preserves individual autonomy regardless of relationship status. (12)

In short, the spousal exception is hopelessly outdated and ignores the developed legal landscape of gender, marital, and privacy law in the United States. We now see that marriage has evolved from an institution built on the notion that husbands are their wives' keepers to a partnership in which each spouse retains a certain level of autonomy over their private affairs. Policy considerations also counsel against a spousal wiretap exception, especially in the digital age. Allowing for such an exception incentivizes spouses to preemptively prepare for divorce or child support proceedings, encouraging criminal conduct and eroding the foundations of trust characteristic of the modern marriage relationship. With the development of widely accessible spyware and surveillance software, savvy spouses can access the private dealings of their partners at the click of a button, (13) making this incentive cheap with a potentially high payoff.

With the spousal wiretap exception still available as a defense in certain jurisdictions, the dangers of allowing this behavior to go unchecked are clear. Codified protection from spousal surveillance at the state level is of the utmost importance in preserving spousal privacy and omitting the use of such evidence in family law proceedings. (14)

Part I of this work will first introduce the Wiretap Act and its origins as a method of protecting private communications from illegal monitoring and will then outline the common law spousal wiretap exception that emerged following the enactment of the Wiretap Act. To underscore the outdated origins of the exception, Part II will discuss how the institution of marriage and legal conceptions of privacy devolved in twentieth-century United States from structures based on coverture and marital unity to those based on constitutionally mandated sex equality and individual privacy rights. (15) Part III will then explain how the contemporary social and technological landscape surrounding the spousal relationship renders the spousal wiretap exception particularly damaging and obsolete. The Comment concludes by recommending that state legislatures eliminate the exception through legislation explicitly codifying its extinction.

1. THE SPOUSAL WIRETAP EXCEPTION

   The Federal Wiretap Act's enactment inadvertently created an issue that remains severely underexplored by legal scholars. Although the Act does not explicitly grant an exemption for wiretapping in domestic relationships by a spouse, some Circuits have read one into the text. This Part examines the statute's history and language, and then discusses the origins and modern caselaw surrounding this spousal wiretap exception.

   1. The Wiretap Act

      When Congress enacted the Federal Wiretap Act in 1968, wiretapping had long been used as a law enforcement tool. (16) Growing concerns over official abuses of power and the increasing availability of private wiretapping catalyzed newfound Congressional focus on the issue. (17) In passing the Act, Congress intended to combat wiretapping "by government agencies and private individuals without the consent of the parties or legal sanction." (18)

      1. Legislative History

         The legislative commentary on the Wiretap Act indicates that Congress intended the term "private individuals" to reach even the confines of the marital home. Congressional findings accompanying the Act's enactment explain that the Wiretap Act "safeguard[s] the privacy of innocent persons" by prohibiting the unauthorized interception of "wire and oral communications." (19) Although the final legislative text does not include any mention of wiretapping within the marital relationship, Scott Glick's in-depth look at the Act's legislative history demonstrates that Congress considered marital communications as covered by the Act. (20) In his work, Glick identified a legislative hearing for the Right of Privacy Act of 1967, (21) a workshopped precursor to the Wiretap Act, where then-professor Robert Blakey testified that private surveillance falls into two major camps: "commercial espionage and domestic relations investigations." (22) Glick identifies Blakey's testimony as foundational to the surviving Wiretap Act, catalyzing the legislative shift in focus to provide for a prohibition against domestic surveillance in the Act. (23) According to Glick, the Wiretap Act "was specifically designed to close the gap caused by the [Right of Privacy Act of 1967's] failure to prohibit electronic surveillance in domestic relations situations." (24) This legislative background bolsters the Wiretap Act's prohibition on private electronic surveillance, including surveillance conducted by a snooping spouse. However, despite the evidence, some federal courts remained skeptical that lawmakers intended to regulate wiretapping in marital relationships through the Wiretap Act.

      2. Language of the Act

         The Federal Wiretap Act, codified at 18 U.S.C. [section][section] 2510-22, forbids the intentional interception, use, and disclosure of real-time "wire, oral or electronic communication[s]" by "any person." (25) For the statute to apply, a communication must be intercepted using an electronic or mechanical device while still in transit to its destination. (26) Congress may...