Vol. 11, No. 6, Pg. 32. Intrafamily Wiretapping in the Internet Age.

AuthorBy Richard G. Whiting

South Carolina Lawyer

2000.

Vol. 11, No. 6, Pg. 32.

Intrafamily Wiretapping in the Internet Age

32INTRAFAMILY WIRETAPPING IN THE INTERNET AGEBy Richard G. WhitingFar too often, a client or others who are friends of a client and believe they are helping will go to any lengths to win a court battle. As a result, lawyers occasionally find themselves in possession of questionably obtained evidence that will virtually guarantee success for their clients. (Lawyers who practice in the divorce and custody fields have more than their fair share of dealing with such evidence.)

Yet the perils associated with this evidence are often greater than the potential benefits, for using it can sometimes expose clients and lawyers to significant liability. This article examines the ethical and legal considerations that apply to a particular type of surreptitiously obtained evidence- intercepted communications.

The general rule regarding wrongfully obtained evidence is that, although it may be excluded from a criminal or quasi-criminal proceeding, it is nevertheless admissible in a civil action. E.g., Rogers v. Williams, 633 A.2d 747 (Del. Fam. Ct. 1993) (video tape of inside of ex-wife's house surreptitiously made by husband's new wife was admissible in child custody modification action); Del Presto v. Del Presto, 97 N.J. Super. 446, 235 A2d 240 (App. Div. 1967) (admitting in evidence love letters from husband to his paramour removed from husband's office file by wife and photographs of inside of paramour's apartment taken by private investigator).

This general rule of admissibility in civil actions is based on the fact that the Fourth Amendment, upon which the exclusionary rule is founded, limits only government conduct, not the conduct of private parties. See generally County of Henrico v. Ehlers, 379 S.E.2d 457 (Va. 1989) (specifically declining to extend the Fourth Amendment exclusionary rule to the civil action). Despite this general rule, however, there are several specific laws that prohibit the use of surreptitiously obtained evidence. Of particular importance in this area are the federal and state anti-wiretapping laws, which have recently been expanded to include Internet activity.

Much of the questionable evidence in civil actions tends to involve illegally obtained tape recordings. A lawyer in possession of such evidence must analyze both state and federal wire tapping laws. Because South Carolina has no wire tapping law, the primary authority in this state is the Omnibus Crime Control and Safe Streets Act of 1968 (Act). Codified at 18 U.S.C. § 2510, et seq., the Act imposes both civil and criminal penalties on persons who intentionally intercept oral or wire communication through an "electronic, mechanical, or other device" and who disclose or use the contents of such interception. The purpose of the Act was to prohibit all interception of oral or wire communication except those specifically provided for in the Act. See U.S. v. Giordano, 416 U.S. 505, 514 (1974).

Since the Act's passage, a number of questions have arisen with respect to wire tapping among family members. A majority of...

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