By Eric Marcy, Esq.
When one thinks their spouse may be having an affair or is engaging in economic infidelity, there is the tendency to consider accessing the cell phone to see who they are communicating with and what is being discussed.
In the context of a potential divorce, such snooping may violate State and/or Federal law and expose one to potential civil and/or criminal liability.
Criminal and Civil Exposure for Accessing the Content of Another’s Cell Phone
Like many questions of law, the answer to whether there is liability for snooping on a spouse’s cell phone text messages, is “it depends.” This is because the civil and/or criminal exposure for such snooping is fact intensive.
Some, but not all, of the factors to consider in determining a snooping spouse’s right to access and the resulting potential liability include:
- Were the parties living together at the time of the interception?
- Whose name is the phone is in, who pays the bills, on what account?
- Was the discovery of the text message inadvertent?
- Is there a history of access?
- What is the expectation of privacy in that phone and line – was access “without authorization”?
- Was the disclosure used for other tortious purposes, i.e., disclosure to third parties, humiliation, embarrassment, or for economic injury?
- Can it be argued that this is not an active conversation but rather simply the storage of older digital information on a common electronic device?
- What psychological or economic damages resulted from the act of interception?
- Would the facts in this case rise to the level of common law invasion of privacy, i.e., would it be “highly offensive to a reasonable person?”
The general answer to determine civil or criminal liability is whether the access occurred without authorization and whether there was an expectation of privacy. To the extent that information is then disclosed to third parties, resulting in humiliation, embarrassment, and/or for economic injury, the potential liability increases.
Federal and State Wiretap Acts
Both the Federal and State Wiretap Acts provide for potential criminal and civil liability for unlawfully accessing wire communications.
The Federal Courts case law addressing whether Federal Wiretap Act should be implicated and prosecuted in Family Law matters is not uniform. It is hard to imagine that the United States Attorney’s Office would pursue such a prosecution unless it relates to far more serious Federal crimes.
New Jersey’s Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”) will be enforced in Family Law matters when there is an expectation of privacy and especially when there is harm done to the victim. There is no “interspousal immunity” for “intentional torts” which includes intercepting electronic communications to which one is not a party.
Although both the Federal and State Wiretap Acts speak in terms of the interception of “aural” communications, the interception of text messages may create exposure. Aural communications are defined as “a transfer containing the human voice at any point between and including the point of origin and the point of reception.” Both Acts also set forth a general definition of “Electronic Communication” which is quite broad and applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature.”
While the Acts do not specifically include the term “text” communications, one should not want to become the test case. Based upon the language and policies behind the Wiretap Act, accessing and sharing text messages requires the consent of at least one party for the disclosure of text messages sent between cellphones.
Civil Liability
In the context of divorce litigation, the unlawful access of wire communications may result in a civil action for damages as part of the Family Part divorce proceedings. New Jersey courts have recognized civil liability for tortious conduct towards a spouse. The courts do not look kindly upon tortious conduct between spouses and an unauthorized interception of oral or wire communications may result in an independent claim of damages in any pending divorce proceeding. The Wiretap Act provides a civil remedy for those who are victims of unlawful oral or wire interception and, in pertinent part, provides:
2A:156A-24. Civil action for damages, attorney’s fee by persons whose communications are intercepted unlawfully
24. Any person whose wire, electronic or oral communication is intercepted, disclosed, or used in violation of this act shall have a civil cause of action against any person who intercepts, discloses, or uses or procures any other person to intercept, disclose or use, such communication; and shall be entitled to recover from any such person:
a. Actual damages, but not less than liquidated damages computed at the rate of $100.00 a day for each day of violation, or $1,000.00, whichever is higher;
b. Punitive damages; and
c. A reasonable attorney’s fee and other litigation costs reasonably incurred.
Even if the actual damages are relatively nominal, the exposure to punitive damages, the recovery of attorneys’ fees and costs can make the penalties quite substantial, not to mention the impact on the credibility of a client and counsel in the eyes of the court.
Criminal Liability
New Jersey case law interprets its Wiretap Act to include electronic mail, text messages and emails withing the definition of “electronic” and “wire” communications. The unlawful interception of wire communications, including text messages can expose one to criminal liability. The Wiretap Act, in pertinent part provides:
2A:156A-3. Interception, disclosure, use of wire, electronic, oral communication; violation
3. Except as otherwise specifically provided in this act, any person who:
a. Purposely intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication; or
b. Purposely discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing, or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
c. Purposely uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication;
shall be guilty of a crime of the third degree. Subsections b. and c. of this section shall not apply to the contents of any wire, electronic or oral communication, or evidence derived therefrom, that has become common knowledge or public information.
While County Prosecutors may be loathe to criminalize family disputes and may exercise discretion to leave such issues to the Family Court, the potential for criminal charges is still present. It should be remembered that should an egregious and clear violation be brought to the court’s attention, the court itself may have an obligation to refer the matter for criminal investigation.
Conclusion:
Remember, anyone who seeks to use intercepted text communications in a family law proceeding is at risk for the filing of separate tort action for damages or worse.
If you believe your spouse has been snooping and improperly accessed or intercepted private telephone calls or text messages, you should consult with counsel as to your rights.
If you have done the snooping and you may have improperly accessed or intercepted telephone calls or text messages, you should consult with counsel to determine how best to protect yourself.
There is no charge for an initial consultation and an ounce of prevention is worth a pound of cure.
References:
White v. White, 344 N.J. Super. 211, 222, 781 A.2d 85 (Ch. Div. 2001)
State v. Gaikwad, 349 N.J. Super. 62, 76-77, 793 A.2d 39, 2002 N.J. Super. LEXIS 140 (App. Div. 2002)
Scott v. Scott, 277 N.J. Super. 601, 608-610, 615-616 (Ch. Div. 1994)
Tevis v. Tevis, 79 N.J. 422 (1979)
N.J. Stat. Ann. § 2A:156A-1, et. seq., “New Jersey Wiretapping and Electronic Surveillance Control Act.”
N.J. Stat. Ann. § 2A:156A-3 – “Interception, disclosure, use of wire, electronic, oral communication; violation”
Model Civil Jury Charge 3.14 “Invasion of Privacy”
Model Civil Jury Charge “8.60 Punitive Damages Actions — General”
Restatement (Second) of Torts, § 652B (1977)
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- Category:Criminal Law, Eric Marcy, Family Law
