What Is the Deal With Secret Recordings?

JurisdictionCalifornia,United States,Federal
AuthorKelly Robbins
Publication year2018
CitationVol. 40 No. 3
What is the Deal With Secret Recordings?

Kelly Robbins

Kelly Robbins has practiced family law, exclusively, for 22 years. She became certified by the State Bar, as a specialist, in 2005 and opened her own practice Robbins Family Law, that same year. Kelly works with Jaclyn Flynn, her associate attorney. In her spare time, Kelly served for nine years on the board of California Women Lawyers, a statewide women's bar association and as its president in 2015-2016. In 2017 Kelly became a member of FLEXCOMM, the Family Law Executive Committee of our Section of the California Lawyers Association. Kelly has served as Judge Pro Tem for the Superior Court in San Francisco, and regularly volunteers as a Settlement Master for the Family Law Court's Mandatory Settlement Conferences.

Ihave some information about my wife..." a client might say during a meeting to advance his custody matter, ".she's on a website advertising as an escort. I don't want my daughter exposed to this type of behavior!" He goes on to say the words she used to describe her style, include "frisky" and that her ad said her clients had to be "discreet" due to her "high-profile job." Despite the fact that this could cause an attorney's head to be spinning with: a) the illogic of how a young daughter would be exposed; and b) how brazen it was that the high-profile wife put up the ad, the attorney should focus enough to ask how the client knew all of this. He might respond, "I put a program on her laptop, so that I could read her emails and know when she changed her passwords."

Oh, SPYWARE! Somberly and forthright comes the advice: "You have to remove that program and whether you remove it or not, you must not access any information from it." Attorneys are wise to be aware of issues related to secret recordings, how they come up in family law, and what the exact prohibitions really are. For this article I have compiled research and provided an overview, excepting issues related to police or government surveillance.

Spyware is a violation of both state and federal law. California law subjects a person who makes use of spyware to fines of up to $2,500 per violation, or imprisonment in either county jail or state prison not to exceed one year, or in some unfortunate cases, both.1 Federal law prohibits spyware by way of The Electronic Communications Privacy Act and the Stored Wire Electronic Communications Act, commonly referred to together as the Electronic Communications Privacy Act (ECPA) of 1986. The background here: the 1986 Act was an update to the Federal Wiretap Act of 1968,2 which addressed interception of conversations using "hard" telephone lines, but which did not apply to interception of computer and other digital and electronic communications. Several subsequent pieces of legislation, such as The USA PATRIOT Act (which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, enacted following 9/11/01 attacks) clarify and update the ECPA to keep pace with the evolution of new communications, technologies, and methods, including loosening restrictions on law enforcement access to stored communications in some cases. The sweeping prohibitions of the ECPA apply to anyone who intercepts the conversations of others without permission, subjecting most perpetrators of private wiretapping to civil and criminal penalties, unless specifically excepted. Currently, the ECPA protects all oral, wire, and electronic communications while in transit (known as Title I). Additionally, a provision of the ECPA known as the Stored...

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