Lewton v. Divingnzzo, 2011 WL 692292 (D.Neb. Feb. 18, 2011)
Defendant thought her ex-husband was abusing their daughter during visitations. To prove these allegations in the custody case, defendant sewed an electronic recording device into the little girl’s favorite teddy bear. After the daughter returned from visiting with her father, the mom would unstitch the teddy bear and download the recorded conversations onto her computer.
She tried using the transcribed recordings as evidence in the state court custody proceeding. But the judge would not let them into evidence because they violated Nebraska law. The father and others whose conversations were recorded via the teddy bear sued the mom under the federal Electronic Communications Privacy Act.
Both sides moved for summary judgment. The court ruled in favor of the father, finding that the surreptitious recording did not fit into any exception of the ECPA.
The ECPA provides a private right of action to any person whose wire, oral or electronic communication is intercepted, disclosed or intentionally used in violation of the ECPA. Looking to Eighth Circuit authority, the court observed that the ECPA prohibits all wiretapping that is not specifically exempted by the statute.
No doubt this was a tough case – a parent fearing for the safety of his or her child might have strong reasons to resort to eavesdropping to protect the child. But the court was hamstrung – “[w]hile the notion that a parent or guardian should be able to listen to a child’s conversations to protect the child from harm may have merit as a matter of policy, it is for Congress, not the courts, to alter the provisions of the statute.”
The court ordered the defendant and her father (who had transcribed the recordings) to pay $10,000 to each of the offended plaintiffs. The defendant’s lawyer who had distributed the recordings to the guardian ad litem and others was found to have violated the ECPA but was not ordered to pay any money damages.