Cheating Heart May Tell On You But Spyware May Not

Your cheating heart may tell on you, but the spyware on the computer that captures the cheating in real time may not be admissible in court.

A Florida appeals court found that spyware installed on a cheating husband’s computer by his wife resulted in an illegal intercept of communications in violation of a state law that prohibits the interception of wire, oral or electronic communications.

Beverly O’Brien thought her husband James was cheating on her. She installed a spyware program on his computer that secretly took snapshots of what appeared on the computer screen in rapid fashion so that it was able to capture his chat room conversations with his lover. When the husband found the program called Spector, he uninstalled it.

During the following divorce, the husband obtained an injunction preventing the wife from disclosing the communications. At trial, the court granted a motion to exclude the evidence from the proceedings. The legal issue was whether Florida’s electronic communications statute that subjects a person to criminal penalties for intentionally intercepting an electronic communication was applicable to the spyware. The statute is similar to the Federal Wiretap Act, which has found that in order for the act to apply, the message must be in transit.

The Florida appellate court found 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.”

“The Spector spyware program that the Wife surreptitiously installed on the computer used by the Husband intercepted and copied the electronic communications as they were transmitted,” the Florida appellate court observed. “. . . because the spyware installed by the Wife intercepted the electronic communication contemporaneously with transmission, copied it, and routed the copy to a file in the computer’s hard drive, the electronic communications were intercepted in violation of the Florida Act.” As a result, since the communications were “illegally intercepted” they could not be admitted into evidence.

Beverly Ann O’Brien v. James Kevin O’Brien, Case No. 5D03-3484, Fla. Ct. of Appeal, 5th Dist. 2005 (Feb. 11, 2005)