Use of spyware doesn’t pay in Florida divorce proceeding

Evidence obtained through wife’s use of spyware on husband’s computer to obtain information about extramarital affair not admissible in divorce proceedings.

Just in time for Valentine’s Day, we have a romantic case coming from Florida that interprets a provision of that state’s Security of Communications Act. The case originated in divorce court, and the appellate court considered whether evidence of a husband’s infidelity obtained through the use of a spyware program installed by the wife was properly excluded in the divorce proceedings. The court held that it was properly excluded from consideration.

After marital discord eruped between Husband and Wife, Wife installed a spyware program on Husband’s computer that captures screenshots which are saved on the hard drive for later review. Through these means, Wife discovered Husband’s online philandering with another woman.

After Husband discovered the spyware on his computer, he petitioned the divorce court to exclude the evidence Wife had obtained using the spyware. The court excluded the evidence, entered a final decree, and Wife appealed.

On appeal, the court affirmed that the evidence was properly excluded, because Wife had obtained it illegally under a provision of the Security of Communications Act that makes it illegal for a person to intentionally intercept wire, oral or electronic communications.

Wife asserted that the communications were not illegally obtained, arguing that by the time the communications appeared on the screen they were no longer in transit, and not subject to interception. The court acknowledged that “there is a rather fine distinction between what is transmitted as an electronic communication subject to interception and the storage of what has been previously communicated.” It went on to hold that “the evanescent time period” between the transmission of the communications and their appearance as visible text on the screen was not “sufficient to transform acquisition of the communications from a contemporaneous interception to retrieval from electronic storage.”

O’Brien v. O’Brien, — So.2d —, 2005 WL 322367 (Feb. 11, 2005).