Wife Can't Use Computer Spyware Evidence in Divorce Case

A woman who installed a spyware program on her husband's computer to record his online exchanges with another woman cannot use that evidence in her divorce proceeding, a Florida appeals court has ruled on an issue of first impression.

Although Florida law does not require such evidence to be excluded, the appellate panel said, it was illegally obtained so the trial judge was within his discretion to throw it out.

The issue arose in a divorce proceeding between Florida residents Beverly and James O'Brien. According to court records, Beverly O'Brien installed a program called Spector on her husband's computer. The program captured and recorded all online chats, instant messages, e-mails sent and received, and Web sites visited on that computer.

Beverly O'Brien sought to introduce that evidence in her divorce proceeding but the trial judge excluded it, saying it was obtained in violation of the state's Security of Communications Act because it "intercepted" the communications.

Beverly O'Brien appealed, arguing that no interception had occurred because the communications were in storage when the Spector program copied them.

The appeals panel found no Florida case law addressing the distinction between electronic communications that are in transit and those in storage, so it turned to cases interpreting the federal Wiretap Act. Using those cases as a guide, the panel said the communications in this case were intercepted while they were in transmission.

Beverly O'Brien argued that each communication was stored at the moment it appeared on the computer screen, but the panel disagreed.

"We do not believe that this evanescent time period is sufficient to transform acquisition of the communications from a contemporaneous interception to retrieval from electronic storage," the panel wrote.

The panel said the Security of Communications Act contains no requirement that evidence obtained in violation of the act be excluded. However, the trial judge still had discretion to decide whether the evidence was admissible, the panel said, concluding the judge did not abuse that discretion when he excluded the evidence because it was obtained in violation of the act.