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The final version of this paper is forthcoming Nebraska Law Review, Vol. 82:3 (2004).

Abstract

In the article I examine the legality of the not uncommon practice of surreptitiously recording telephone conversations, videotaping activities and accessing e-mail or voicemail communications by parties in domestic disputes. First, I examine the important values that are implicated by such activities. These values include conversation, communication and physical privacy. Conversation (and communication) privacy are valued on both intrinsic and instrumentalist grounds. These values run into countervailing values in domestic conflict cases. These include parental autonomy in child rearing and the best interests of the child. I argue that the pervasiveness of electronic surveillance and the emerging tradition in our legal system to grant “mature minors” self-determination in respect to decisions traditionally left to parents need to count more in accommodating values in parental electronic surveillance cases.

Section II examines the legality of electronic surveillance in domestic disputes under federal and state wiretap and stored communications acts and the common law privacy intrusion tort. Wiretap and stored communications acts are notorious for their lack of clarity. I endeavor in part of this section to lay foundations about the basic concepts and structure of these laws and identify areas where there is some clarity.

Wiretap acts generally prohibit surreptitious electronic surveillance of conversations. However, electronic surveillance in domestic disputes may be legal if the surveillance is sanctioned under three exceptions. These are: (1) the marital conflict exception; (2) the telephone extension exception; and (3) the vicarious consent exception. I join other commentators in their criticism of the first two exceptions. The vicarious consent exception is of recent vintage and I argue that the exception ought to be junked for several reasons. These include inherent problems with the parental motive tests, the incomprehensibility of vicarious consent with the modern law of joint custody, and the non-identity of interests in parental electronic surveillance cases. I also suggest that the problems with the self-minimization role granted to parents under the vicarious consent exception is another reason to junk the defense.

Access to e-mail and voicemail are regulated under federal and state stored communications acts. Unlike wiretap acts these statutes do not contain exclusionary rules and the fruits of violations of stored communications acts are still admissible in civil and criminal proceedings. Courts have construed stored communication acts to not apply to surreptitious access of e-mail and voicemail from computers in the home. In addition, silent video surveillance is not regulated under wiretap or stored communications acts. This development has elevated the role of the common law privacy intrusion tort in legal evaluation of access to e-mail in home computers and surreptitious video surveillance in the home. It is clear that surreptitious audio and video surveillance in domestic conflicts may constitute tortuous conduct even if the conduct does not violate wiretap or stored communications acts. I examine the extent to which parties may have reasonable expectations of privacy in conversations and communications within the meaning of the privacy intrusion tort. I conclude that it would be tortuous conduct for a spouse to access e-mail stored in a home computer if the e-mail is stored in a segregated account and the parties have maintained separate passwords.

Much evidence that is obtained by illegal electronic surveillance maybe admissible in marriage and custody proceedings because violations of stored communications acts and the privacy intrusion tort do not provide a basis for excluding evidence in civil court proceedings. I suggest that protective orders based upon discovery rules and constitutional privacy rights may provide a way to protect privacy by excluding some communications or images from admissibility in judicial records.

Disciplines

Torts

Date of this Version

September 2003

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