www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 1 of 59 Privacy Violations During Divorce in the USA Copyright 2012 by Ronald B. Standler No copyright claimed for works of the U.S. Government. No copyright claimed for quotations from any source, except for selection of such quotations. Keywords adultery, confidential, divorce, e-mail, keystroke logger, privacy, private, spouse, spouses, tort, torts, videocamera, wiretap, wiretapping Table of Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Expectation of Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 marriage is a confidential relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 relationship changes when “living separate and apart” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 spouse may be justified in investigating possible adultery . . . . . . . . . . . . . . . . . . . . . . . . . 6 adultery not protected by privacy? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 private places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. wiretapping of spouse’s telephone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Fifth Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Second Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 wiretapping children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Markham (Fla. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. videotaping in bedroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Hamberger v. Eastman (N.H. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Miller v. Brooks (N.C.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Plaxico v. Michael (Miss. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Clayton v. Richards (Tex.App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Lewis v. LeGrow (Mich.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Tigges (Iowa 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Perez (Minn.App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 C. privacy of computer files (e.g., e-mail) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Hazard (Tenn.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Stafford (Vt. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 2 of 59 Byrne (N.Y.Sup. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 White (N.J.Super.Ch. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Evans (N.C.App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Poling (Ohio Mun. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Jennings (S.C.App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 password-protected files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 D. keystroke logger on family’s computer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Zapeda (S.Dak. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 O’Brien (Fla.App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Rich (Mass.Super 2007, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Bailey (E.D.Mich. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Miller v. Meyers (W.D.Ark. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Introduction In 1998, I posted a short essay on privacy law at my website, http://www.rbs2.com/privacy.htm and also an essay about privacy of e-mail at http://www.rbs2.com/email.htm . In response to those essays, I received some e-mails from anguished people who alleged their spouse had read confidential e-mail or chat transcripts on their computer, and then used the information in divorce litigation. The attorneys for my correspondents did not hire me as a consultant for legal research, and so I could not help them. This fascinating topic has stewed in the back of my mind for years, as I thought about privacy rights of a spouse during marriage, and how such rights might change when the parties live “separate and apart” during divorce proceedings. In addition to privacy law and divorce law, this topic involves evidence law and both federal and state criminal law (e.g., wiretaps, unauthorized access to a computer, stored communications, etc.). Much of the evidence in divorce litigation is testimony by the spouses. Such testimony commonly includes exaggerations and sometimes false statements. Perhaps in an attempt to get more credible evidence than personal testimony, a litigant in a divorce sometimes records the other spouse’s telephone calls, videotapes the other spouse in the bedroom of their home, or retrieves the other spouse’s e-mail. While such evidence is probably more reliable than personal testimony, collecting the evidence may invade the other spouse’s privacy. Such an invasion of privacy is a tort, which makes the invader liable for paying damages to the victim. And because these are www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 3 of 59 intentional torts, homeowners insurance will pay for neither the damages nor the attorney’s fees for defending the tort litigation. disclaimer This essay presents general information about an interesting topic in law, but is not legal advice for your specific problem. See my disclaimer at http://www.rbs2.com/disclaim.htm . From reading e-mail sent to me by readers of my essays since 1998, I am aware that readers often use my essays as a source of free legal advice on their personal problem. Such use is not appropriate, for reasons given at http://www.rbs2.com/advice.htm . I list the cases in chronological order in this essay, so the reader can easily follow the historical development of a national phenomenon. If I were writing a legal brief, then I would use the conventional citation order given in the Bluebook. I use longer quotations from judicial opinions that is common in law review articles, simply to give the reader the most authoritative statement without the need to go to a law library and read dozens of opinions. In this way, my essay functions like a law school case book, but on a very narrow topic. Expectation of Privacy When two spouses live together there is some loss of privacy, because of their shared lives and because of their trust of each other.1 When one spouse alleges a violation of his/her privacy, the initial question arises whether the spouse had a reasonable expectation of privacy, given the particular facts of the case. marriage is a confidential relationship Two people who are married to each other are in a fiduciary relationship. As part of that relationship, there is a legal obligations not to disclose confidential information to a third party and not to use confidential information for personal advantage. This fiduciary relationship might justify allowing one spouse to read the other spouse’s communications, if the communications can not be legally disclosed. In litigation involving a third-party (or government), there is a fundamental rule of evidence that a spouse can not give evidence about “private communications which took place during the marriage”, even after death of one spouse or after divorce, and not 1 For a rare judicial recognition of this fact, see, e.g., Clayton v. Richards, 47 S.W.3d 149, 155 (Tex.App.–Texarkana 2001) (“A spouse shares equal rights in the privacy of the bedroom, and the other spouse relinquishes some of his or her rights to seclusion, solitude, and privacy by entering into marriage, by sharing a bedroom with a spouse, and by entering into ownership of the home with a spouse. However, nothing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals.”). www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 4 of 59 even with consent of the other spouse. See, e.g., Morgan v. U. S., 363 A.2d 999, 1004, n.5 (D.C. 1976) (citing Hopkins v. Grimshaw, 165 U.S. 342 (1897)). Other noteworthy cases on this marital communication privilege include: • Bassett v. U.S., 137 U.S. 496, 505 (U.S. 1890) (“It was a well-known rule of the common law that neither husband nor wife was a competent witness in a criminal action against the other, except in cases of personal violence, the one upon the other, in which the necessities of justice compelled a relaxation of the rule.”); • Trammel v. U.S., 445 U.S. 40, 53 (1980) (“... we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification — vesting the privilege in the witness-spouse — furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs.”); • U.S. v. Byrd, 750 F.2d 585, 589 (7thCir. 1984) (“Privileges such as the attorney-client, doctor-patient, or marital communications privilege exist at common law or by statute to protect those interpersonal relationships which are highly valued by society and peculiarly vulnerable to deterioration should their necessary component of privacy be continually disregarded by courts of law.”; • U.S. v. Bahe, 128 F.3d 1440, 1444-1445 (10thCir. 1997) (“We believe the accepted norm in this country is that intimate sex acts between marriage partners are communication and an important expression of love. .... If we limit the marital communications privilege as narrowly as the government seeks in the instant case, a spouse could testify to every aspect of the marital sexual relationship. There is something inherently offensive in that idea.”); • Pennsylvania v. Weiss, 776 A.2d 958, 967-968 (Pa. 2001) (“... disclosure of confidential communications made during a marriage is prohibited even following the dissolution of the marriage. Cornell v. Vanartsdalen, 4 Pa. 364 (1846).”); • Connecticut v. Christian, 841 A.2d 1158, 1175 (Conn. 2004) (“For the marital communications privilege to apply, the communications must have been made in confidence during the marriage. Once the marital communications privilege has attached, moreover, it continues to survive even after the marriage has ended. See Pereira v. United States, 347 U.S. 1, 6, 74 S.Ct. 358, 98 L.Ed. 435 (1954) (“divorce ... does not terminate the privilege for confidential marital communications”)....”); • Pagan v. Florida, 29 So.3d 938, 958 (Fla. 2009) (“... there is a marital privilege for confidential communications made between spouses while they are husband and wife. See § 90.504, Fla. Stat. (2007). The privilege continues after the marital relationship ends as long as the communications were made during the marital relationship. Either party can invoke the privilege and refuse to disclose or prevent another from disclosing those communications. This privilege does not apply where the spouses are involved in proceedings against each other or one spouse is charged with a crime committed against the other spouse's person or property or that of a child of either.”). The details of the spousal testimonial privilege and marital communications privilege vary amongst jurisdictions, and also change with time. Before using spousal privilege in a case, an attorney should carefully research recent cases in that jurisdiction. Because the marital privilege does not apply in family law cases, the marital privilege is not useful to bar evidence collected by www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 5 of 59 surveillance (i.e., privacy violations) in family law cases. However, the existence of the marital privilege shows that — in general — the law does respect marriage as a confidential relationship. However, in a case involving a Jehovah’s Witness refusal to consent to blood transfusion, in which an estranged Husband (living separate and apart) consented for her when Wife was hemorrhaging following a Caesarean section, the Florida Supreme Court noted that spouses do not relinquish their individual right to personal autonomy: We note that marriage does not destroy one's constitutional right to personal autonomy. In In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990), we held in relevant part that “when the patient has left instructions regarding life-sustaining treatment, the surrogate must make the medical choice that the patient, if competent, would have made, and not one that the surrogate might make for himself or herself, or that the surrogate might think is in the patient's best interests.” Id. at 13 (emphasis supplied). The majority below said it looked to the husband's consent as “relevant only for the purpose of considering whether alternative care for the surviving children is available, in weighing the overriding interest of the state, and in determining whether or not the spouse's decision to refuse the transfusion constitutes an abandonment.” Dubreuil, 603 So.2d at 542. However, implicit in the decision of the trial court, and in its approval by the district court, is acceptance of the hospital's decision to allow Luc [the estranged Husband] to assert his own views over Patricia’s [his Wife’s] wishes. This is impermissible. See Browning. Matter of Dubreuil, 629 So.2d 819, 827, n.13 (Fla. 1993). So even in matters of saving a spouse’s life, the law — and the other spouse — must obey the wishes of the spouse who is in peril. Because this case was decided on constitutional privacy grounds (i.e., preventing government from interfering with personal decisions), it is also relevant to invasions of privacy by one spouse on the other spouse.2 Dubreuil stands for the proposition that married people in Florida have the same right of privacy as unmarried people. relationship changes when “living separate and apart” In some states, a legal condition for filing for no-fault divorce is that the parties have lived “separate and apart” for at least a specified time before filing for divorce.3 In Pennsylvania law, the important condition is that they maintain separate lives, even though they may continue to share one residence. 2 Laura W. Morgan and Lewis B. Reich, “The Individuals’s Right of Privacy in a Marriage,” 23 JOURNAL OF AMERICAN ACADEMY OF MATRIMONIAL LAWYERS 111, 125 and n.68 (2010). 3 See, e.g., New York Domestic Relations Law § 170(6) (enacted 1966, current Dec 2011) ("The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years...."); Ohio Revised Code § 3105.01(J) (effective May 1974, amended, current Dec 2011) ("... may grant divorces ... when husband and wife have, without interruption for one year, lived separate and apart without cohabitation."); 23 Pa.C.S.A. § 3301(d) (enacted 1980, still current Dec 2011) ("The court may grant a divorce where ... the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken."). www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 6 of 59 Separate lives, and not separate roofs, appear to be the gravamen of [23 Penn. Statutes] section 201(d). [¶] The realities of matrimonial experience dictate that economic urgencies, as well as other reasons, may impel spouses to remain under the same roof long after marital relations may otherwise have ended. A wall of silence or detachment may be equally as effective a barrier between parties as any wall of brick or stone in establishing a cessation of cohabitation. Amelio v. Amelio, 18 Pa. D. & C.3d 673, 674-675 (Pa.Com.Pl. 1981). See also Thomas v. Thomas, 483 A.2d 945, 947 (Pa.Super. 1984) (citing Amelio); Flynn v. Flynn, 491 A.2d 156, 159 (Pa.Super. 1985) (citing Amelio, “This position follows the trend of Pennsylvania case law in which a common residence is not a bar to showing that the parties live separate and apart in order to establish entitlement to support [or to dissolve their marriage].”); Mackey v. Mackey, 545 A.2d 362, 365 (Pa.Super. 1988) (quoting Flynn); Teodorski v. Teodorski, 857 A.2d 194, 197-198, 2004 PA Super 313, ¶6 (Pa.Super. 2004) (“... the gravamen of the phase ‘separate and apart’ becomes the existence of separate lives not separate roofs.” Quoting Wellner, 699 A.2d 1278, 1281 (Pa.Super. 1997), which quotes Flynn.). I wonder if this living “separate and apart” ends the fiduciary relationship, and puts the spouses at “arm’s length” in terms of contractual bargaining and lack of trust of the other spouse. If the spouses share a residence while living separate and apart (i.e., before and during pendency of a divorce), I suggest that they not share a computer. Sharing a computer with one’s opponent in litigation is a very bad idea, which just invites privacy violations. Divorce attorneys should explicitly recommend against such sharing of computer(s) with one’s opponent in divorce litigation. Purchasing a new computer for private use is much less expensive than paying an attorney to litigate alleged invasions of privacy. spouse may be justified in investigating possible adultery In some states, adultery continues to be grounds for divorce. Concealment of adultery is a fraud on the innocent spouse. I expect that privacy does not allow a married person to legally conceal adultery from the other spouse. As a practical matter, the innocent spouse may be exposed to sexually transmitted diseases by continuing intercourse with an adulterous spouse,4 so the innocent spouse may have a self-defense argument for wanting to know about adultery. 4 Jennifer Mitchell, Note, “Sex, Lies, and Spyware: Balancing the Right to Privacy against the Right to Know in the Marital Relationship,” 9 JOURNAL OF LAW AND FAMILY STUDIES 171, 183 (2007). www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 7 of 59 adultery not protected by privacy? It seems well established that adultery is not protected by privacy law. The Texas Supreme Court wrote: Similarly, several federal district courts have concluded that adultery is not protected by the right to privacy. E.g., Oliverson v. West Valley City, 875 F.Supp. 1465, 1480 (D.Utah 1995)(“Extramarital sexual relationships are not within the penumbra of the various constitutional provisions or the articulated privacy interests protected by the Constitution”); Suddarth v. Slane, 539 F.Supp. 612, 617 (W.D.Va. 1982)(holding that federal privacy rights do not include protection for adultery); Johnson v. San Jacinto Junior College, 498 F.Supp. 555 (S.D.Tex. 1980)(stating that right to privacy does not protect adulterous conduct). City of Sherman v. Henry, 928 S.W.2d 464, 471 (Tex. 1996). See also Marcum v. Catron, 70 F.Supp.2d 728 (E.D.Ky. 1999), aff’d sub nom. Marcum v. McWhorter, 308 F.3d 635, 642-643 (6thCir. 2002) (deputy sheriff fired because of adultery); Cawood v. Haggard, 327 F.Supp.2d 863, 877-879 (E.D.Tenn. 2004) (Attorney’s adulterous relationship with his client was not “within a right of privacy that is constitutionally protected from government intrusion”.); United States v. Orellana, 62 M.J. 595, 598 (N.M.Ct.Crim.App. 2005) (adultery not constitutionally protected conduct under Lawrence where criminal offense has “purpose is to maintain good order and discipline within the service, while secondarily fostering the fundamental social institution of marriage.”), rev. denied, 63 M.J. 295 (C.A.A.F. 2006). However, note that none of these cases were in the context of one spouse searching for evidence of adultery by the other spouse. Instead, the contexts were a government employee (e.g., policeman, teacher, military) being disciplined or dismissed from employment because of adultery. private places There is a strong connection between the Fourth Amendment prohibition against “unreasonable searches and seizures” (which regulates conduct of government agents who do not have a search warrant) and torts for invasion of privacy. A landmark U.S. Supreme Court case tells us: “... the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967). Thirty-one years later, the U.S. Supreme Court clarified what it meant in Katz: But the extent to which the Fourth Amendment protects people may depend upon where those people are. We have held that “capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas [v. Illinois], [439 U.S. 128] at 143 [(1978)], .... See also Rawlings v. Kentucky, 448 U.S. 98, 106 ... (1980). Minnesota v. Carter, 525 U.S. 83, (U.S. 1998). There is also no doubt that people have a greater expectation of privacy in some places than in other places. For example, one has no reasonable expectation of privacy for conduct on a sidewalk in the downtown district, where one is surrounded by strangers. On the other hand, one has a high www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 8 of 59 expectation of privacy for conduct inside a home, and especially in a bedroom. There is a high expectation of privacy in substitutes for a home, such as a hotel or motel room. A person also has a high expectation of privacy for activities inside a rest room of a public building, and a higher expectation of privacy inside a bathroom of their home. There are also high expectations of privacy inside a lawyer’s office (or clergy’s office) when only the attorney and client (or clergy and parishioner) are present, because of the confidential relationship. Similarly, there is a high expectation of privacy in a physician’s office, in a room where only the physician/nurse and patient are present. Looking at these examples, we can deduce the general principle that a high expectation of privacy attaches to places where both (1) strangers are excluded, and (2) either sole occupancy or any second person present has a confidential relationship (e.g., husband-wife, attorney-client, clergy-parishioner, physician-patient, or any other fiduciary relationship). Cases I have made numerous searches of state and federal cases in the Westlaw database for many different queries to find alleged privacy violations in divorce proceedings, use of keystroke loggers in divorce litigation, searches of trash for evidence to use in divorce litigation, etc. I have found remarkably few cases. I suggest that divorce litigation is more expensive than most people can afford, and litigating additional claims for alleged privacy violations preceding or during divorce would add even more legal fees — so the privacy violations routinely continue without any case law to cite to discourage these violations. Furthermore, damage awards for privacy violations tend to be small, so plaintiff’s legal fees can be larger than the damage award — making it a pyrrhic victory. A. wiretapping of spouse’s telephone A law review article in 2004 cited a 1976 study that indicated that 79% of the illegal wiretapping reported to the Federal Bureau of Investigation (FBI) [between 1967 and 1974] for which a motive could be identified involved surveillance by spouses, parens, or those in courtship. Richard C. Turkington, “Protection for Invasions of Conversational and Communication Privacy by Electronic Surveillance in Family, Marriage, and Domestic Disputes Under Federal and State Wiretap and Store Communications Acts and the Common Law Privacy Intrusion Tort,” 82 NEBRASKA LAW REVIEW 693, 695-696 (2004) (citing NATIONAL COMMISSION FOR THE REVIEW OF FEDERAL & STATE LAWS RELATED TO WIRETAPPING AND ELECTRONIC SURVEILLANCE, Electronic Surveillance 160 (1976)). The federal wiretap act, 18 U.S.C. §§ 2510-2521, prohibits one spouse from recording the telephone calls of the other spouse in most of the USA: • White v. Weiss, 535 F.2d 1067 (8thCir. 1976) (private detective, who was hired by Wife, is liable for wiretapping of Husband and his girlfriend); www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 9 of 59 • United States v. Jones, 542 F.2d 661 (6thCir. 1976); • Pritchard v. Pritchard, 732 F.2d 372, 374 (4thCir. 1984) • Kempf v. Kempf, 868 F.2d 970, 972–73 (8thCir. 1989) • Heggy v. Heggy, 944 F.2d 1537, 1539 (10thCir. 1991), cert. denied, 503 U.S. 951 (1992); • United States v. Murdock, 63 F.3d 1391, 1400 (6thCir. 1995) (“This court concludes that the absence of an interspousal exemption from the restrictions of Title III as recognized by this circuit, together with the general proposition that spying on one’s spouse does not constitute use of an extension phone in the ordinary course of business, ....”), cert. denied, 517 U.S. 1187 (1996); • Glazner v. Glazner, 347 F.3d 1212, 1215 (11thCir. 2003) (en banc) (“The language of Title III [18 U.S.C. §§ 2510–2522] is clear and unambiguous. It makes no distinction between married and unmarried persons or between spouses and strangers. .... ... an overwhelming majority of the federal circuit and district courts, as well as state courts, addressing the issue have refused to imply an exception to Title III liability for interspousal wiretapping. [citing cases]”). Fifth Circuit However, in the Fifth Circuit (i.e., Texas, Louisiana, and Mississippi) spouses may wiretap each other, under the much criticized holding of Simpson v. Simpson, 490 F.2d 803, 805 (5thCir. 1974) (“However, we are of the opinion that Congress did not intend such a far-reaching result, one extending into areas normally left to states, those of the marital home and domestic conflicts.”), cert. den., 419 U.S. 897 (1974). Simpson, 490 F.2d at 806, n.7 also relied on interspousal tort immunity, a relic from the 1800s that is now rejected by most states in the USA.5 For more criticism of Simpson, see: • United States v. Jones, 542 F.2d 661, 668-672 (6thCir. 1976); • Ransom v. Ransom, 324 S.E.2d 437, 438 (Ga. 1985); • PV Intern. Corp. v. Turner, 765 S.W.2d 455, 469-470 (Tex.App.-Dallas 1988) (“... we believe that the decision in Simpson is wrong. We, therefore, decline to follow it.”), writ denied, 778 S.W.2d 865, 866 (Tex. 1989) (per curiam) (“The [Texas state] court of appeals declined to follow Simpson v. Simpson, 490 F.2d 803 (5thCir.), cert. denied, 419 U.S. 897, [...], which is factually analogous to the instant case.”); 5 William L. Prosser and W. Page Keeton, PROSSER AND KEETON ON THE LAW OF TORTS, § 122 (5thed. 1984); Carl Tobias, “Interspousal Tort Immunity in America,” 23 GEORGIA LAW REVIEW 359 (Winter 1989); Carl Tobias, “The Imminent Demise of Interspousal Tort Immunity,” 60 MONTANA LAW REVIEW 101 (Winter 1999). www.rbs2.com/dprivacy.pdf 5 Jan 2012 Page 10 of 59 • People v. Otto, 831 P.2d 1178, 1185-1190 (Calif. 1992) (at 1188: “Simpson’s reasoning has been subjected to severe criticism, and its holding has been repudiated by the vast majority of legal commentators and state and federal courts.”); • Pollock v. Pollock, 154 F.3d 601, 606, n.12 (6thCir. 1998) (“While the Fifth Circuit has not overruled that decision, it has been severely criticized by a number of other circuits, ....”). See also: • Savalle Davis, “Wiretapping and the Confines of the Marital Home: What Part of ‘Any’ Don’t You Understand?,” 20 JOURNAL OF LEGISLATION 75 (1994). Second Circuit The Second Circuit has an oddball interpretation of the federal wiretap act in a case involving Wife, whose conversations with her 8 y old daughter were wiretapped (by using a telephone answering machine to record her calls) by her Husband for two years preceding divorce, to secure evidence for use in a child custody case. The facts in the instant case, by contrast, present a purely domestic conflict a dispute between a wife and her ex-husband over the custody of their children a matter clearly to be handled by the state courts. We do not condone the husband’s activity in this case, nor do we suggest that a plaintiff could never recover damages from his or her spouse under the federal wiretap statute. We merely hold that the facts of this case do not rise to the level of a violation of that statute. Anonymous v. Anonymous, 558 F.2d 677, 679 (2dCir. 1977). Followed in Janecka v. Franklin, 684 F.Supp. 24 (S.D.N.Y. 1987), aff’d, 843 F.2d 110 (2dCir. 1988). Note that Anonymous cites Simpson v. Simpson, 490 F.2d 803 (5thCir. 1974), which was later overruled in Glazner v. Glazner, 347 F.3d 1212, 1215 (11thCir. 2003) (en banc), so the authority for Anonymous is now weak. It is not clear how much of Anonymous depends on the fact that one party to the wiretapped calls was a child. Below, at page 12, I cite cases that permit a parent to wiretap conversations between their child and the other parent. These cases form a strange exception to spousal wiretapping cases. A U.S. District Court judge in Pennsylvania nicely refuted Anonymous in the Second Circuit: Finally, Title III is not, as the defendants suggest, an intrusion by the federal government into the law of domestic relations, a subject traditionally left to the states. Title III regulates electronic eavesdropping, not marital relations. It proscribes one method of gathering evidence for use in, inter alia, domestic relations cases, but in no manner deals with the merits of such cases. The statute is unconcerned with questions of divorce, support, custody, property, etc., and though two opposing parties to the instant case are married, this case requires no resolution of such issues. The institution of marriage is not such a “sacred cow” [footnote to: Comment, Interspousal Electronic Surveillance Immunity, 7 U. of Tol.L.Rev. 185, 196 (1975)] that when Congress seeks to prohibit a “dirty business” [footnote to: Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting)] such as wiretapping it must abstain (or be