O'BRIEN v. O'BRIEN, 5D03-3484.

• Decision Date: 11 February 2005
• Docket Number: No. 5D03-3484.,5D03-3484.
• Citation: 899 So.2d 1133
• Parties: Beverly Ann O'BRIEN, Appellant, v. James Kevin O'BRIEN, Appellee.
• Court: Florida District Court of Appeals

899 So.2d 1133

Beverly Ann O'BRIEN, Appellant, v. James Kevin O'BRIEN, Appellee.

No. 5D03-3484.

District Court of Appeal of Florida, Fifth District.

February 11, 2005.

Opinion Denying Rehearing April 29, 2005.

Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant. David F. Allen, Winter Park, for Appellee.

SAWAYA, C.J.

Emanating from a rather contentious divorce proceeding is an issue we must resolve regarding application of certain provisions of the Security of Communications Act (the Act) found in Chapter 934, Florida Statutes (2003). Specifically, we must determine whether the trial court properly concluded that pursuant to section 934.03(1), Florida Statutes (2003), certain communications were inadmissible because they were illegally intercepted by the Wife who, unbeknownst to the Husband, had installed a spyware program on a computer used by the Husband that copied and stored electronic communications between the Husband and another woman.

When marital discord erupted between the Husband and the Wife, the Wife secretly installed a spyware program called Spector on the Husband's computer. It is undisputed that the Husband engaged in private on-line chats with another woman while playing Yahoo Dominoes on his computer. The Spector spyware secretly took snapshots of what appeared on the computer screen, and the frequency of these snapshots allowed Spector to capture and record all chat conversations, instant messages, e-mails sent and received, and the websites visited by the user of the computer. When the Husband discovered the Wife's clandestine attempt to monitor and record his conversations with his Dominoes partner, the Husband uninstalled the Spector software and filed a Motion for Temporary Injunction, which was subsequently granted, to prevent the Wife from disclosing the communications. Thereafter, the Husband requested and received a permanent injunction to prevent the Wife's disclosure of the communications and to prevent her from engaging in this activity in the future. The latter motion also requested that the trial court preclude introduction of the communications into evidence in the divorce proceeding. This request was also granted. The trial court, without considering the communications, entered a final judgment of dissolution of marriage. The Wife moved for rehearing, which was subsequently denied.

The Wife appeals the order granting the permanent injunction, the final judgment, and the order denying the Wife's motion for rehearing on the narrow issue of whether the trial court erred in refusing to admit evidence of the Husband's computer activities obtained through the spyware the Wife secretly installed on the computer. The Wife argues that the electronic communications do not fall under the umbra of the Act because these communications were retrieved from storage and, therefore, are not "intercepted communications" as defined by the Act. In opposition, the Husband contends that the Spector spyware installed on the computer acquired his electronic communications real-time as they were in transmission and, therefore, are intercepts illegally obtained under the Act.

The trial court found that the electronic communications were illegally obtained in violation of section 934.03(1)(a)(e), and so we begin our analysis with the pertinent provisions of that statute, which subjects any person to criminal penalties who engages in the following activities:

(a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication;

(b) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

2. Such device transmits communications by radio or interferes with the transmission of such communication;

(c) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or

(e) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication intercepted by means authorized by subparagraph (2)(a)2., paragraph (2)(b), paragraph (2)(c), s. 934.07, or s. 934.09 when that person knows or has reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, has obtained or received the information in connection with a criminal investigation, and intends to improperly obstruct, impede, or interfere with a duly authorized criminal investigation;

shall be punished as provided in subsection (4).

§ 934.03(1)(a)-(e), Fla. Stat. (2003). Enactment of these prohibitions connotes "a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation." Shevin v. Sunbeam Television Corp., 351 So.2d 723, 726-27 (Fla.1977). The purpose of the Act is to protect every person's right to privacy and to prevent the pernicious effect on all citizens who would otherwise feel insecure from intrusion into their private conversations and communications. Id.

The clear intent of the Legislature in enacting section 934.03 was to make it illegal for a person to intercept wire, oral, or electronic communications. It is beyond doubt that what the trial court excluded from evidence are "electronic communications."¹ The core of the issue lies in whether the electronic communications were intercepted. The term "intercept" is defined by the Act as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." § 934.02(3), Fla. Stat. (2003). We discern 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 is here that we tread upon new ground. Because we have found no precedent rendered by the Florida courts that considers this distinction, and in light of the fact that the Act was modeled after the Federal Wiretap Act,² we advert to decisions by the federal courts that have addressed this issue for guidance.³

The federal courts have consistently held that electronic communications, in order to be intercepted, must be acquired contemporaneously with transmission and that electronic communications are not intercepted within the meaning of the Federal Wiretap Act if they are retrieved from storage. See Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir.2003)

; Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir.),

cert. denied, ___ U.S. ___, 125 S.Ct. 48, 160 L.Ed.2d 17 (2004); United States v. Steiger, 318 F.3d 1039 (11th Cir.),

cert. denied, 538 U.S. 1051, 123 S.Ct. 2120, 155 L.Ed.2d 1095 (2003); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.2002),

cert. denied, 537 U.S. 1193, 123 S.Ct. 1292, 154 L.Ed.2d 1028 (2003). These courts arrived at this conclusion based on the federal law definitions of (1) the term "intercept," which is very similar to the definition in the Florida Act, (2) the term "wire communication," which provides for electronic storage, and (3) the term "electronic communication," which does not provide for electronic storage. The fact that the definition of "wire communication" provides for electronic storage while the definition of "electronic communication" does not, suggests to the federal courts that Congress intended "intercept" to include retrieval from storage of wire communications, but exclude retrieval from storage of electronic communications. The definition of "wire communication" in the Florida Act, unlike the Federal Wiretap Act, does not include a provision for retrieval from storage and, therefore, it is not clear whether the same rationale would be applied by the federal courts to provisions identical to the Florida Act. However, we need not decide whether electronic communications may never be intercepted from storage under the Florida Act because the particular facts and circumstances of the instant case reveal that the electronic communications were intercepted contemporaneously with transmission.

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. We believe that particular method constitutes interception within the meaning of the Florida Act, and the decision in Steiger supports this conclusion. In Steiger, an individual was able to hack into the defendant's computer via a Trojan horse virus that allowed the hacker access to pornographic materials stored on the hard drive. The hacker was successful in transferring the pornographic material from that computer to the hacker's computer. The court held that because the Trojan horse virus simply copied information that had previously been stored on the computer's hard drive, the capture of the electronic communication was not an interception within the meaning of the Federal Wiretap Act. The court did indicate, however, that interception could occur if the virus or software intercepted the communication as it was being transmitted and copied it. The court stated:

[T]

...