While use, mis-use and abuse of electronic means of storage and communication are now inexorable features of daily living, there is something still magical and compelling about computer “hacking.” And no, I am not talking about #anonymous. I am talking about your current, soon-to-be or already ex-spouse; s/he is already messing with your smart phone, your tablet, your laptop and, heaven help you, your work computer. Computer “hacking” and other methods of surveillance — wiretapping, videotaping, etc. — are rapidly become de rigueur in the nasty world of divorce law. Word to the wise: Don’t do it. Word to the wise attorney: Counsel your clients not to do it.
If I find out that your client is “hacking” into my client’s computer, I am going straight to Federal Court, and you are going to wish we’d never met. Your client is going to get hurt and, more incredibly, perhaps you too. What if the “hacked” emails are being sent to you? What if they contain attorney-client privileged matters that you are ethically required to identify and destroy? What if I allege that you are complicit? What if you are?
More specifically, if your client is caught or at least suspected of computer “hacking,” s/he (and perhaps you) can be sued in Federal Court under the Federal Wiretap Act, 18 USC Chapter 119, entitled “WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS .”
Of particular significance are the provisions of 18 USC Section 2520, which provide for civil remedies and penalties. While lengthy, for your convenience, I have laid out the relevant text in full, as follows:
“(a) In General.— Except as provided in section 2511 (2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.
(b) Relief.— In an action under this section, appropriate relief includes—
(1) such preliminary and other equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c) and punitive damages in appropriate cases; and
(3) a reasonable attorney’s fee and other litigation costs reasonably incurred.
(c) Computation of Damages.—
(1) In an action under this section, if the conduct in violation of this chapter is the private viewing of a private satellite video communication that is not scrambled or encrypted or if the communication is a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the court shall assess damages as follows:
(A) If the person who engaged in that conduct has not previously been enjoined under section 2511 (5) and has not been found liable in a prior civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $50 and not more than $500.
(B) If, on one prior occasion, the person who engaged in that conduct has been enjoined under section 2511 (5) or has been found liable in a civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $100 and not more than $1000.
(2) In any other action under this section, the court may assess as damages whichever is the greater of—
(A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.”
So that there is no mistake, Title III of the Act expressly excludes certain classes of individuals from the operation of the statute, but contains no explicit exception for spouses or family members. See e.g., Gelbard v. United States, 408 U.S. 41, 46 (1972). And, please know that Courts have become very unforgiving about spouses hacking each other’s email during a divorce, due mainly to the enormous breach of trust involved. Thus, at a time when the marriage was in bloom and passwords shared, most married people think nothing of it. Suddenly, however, when a divorce is initiated and emotions run high, electronic surveillance seems like the “natural” thing to do. It’s not; it’s the stupid thing to do, and if you suspect or know that your client has done it, you must take immediate steps to halt the practice. If you are unable or unwilling to do so, you must withdraw: It’s that serious.
If you want to learn more about computer “hacking” as an increasingly popular — and dangerous — divorce “discovery tool,” try any basic Google search like “computer hacking in divorce cases,” and you’ll get the idea. And then quickly lose it. I promise.