Jeffrey Jacobs The Jacobs Patent Law Firm 281-496-5598

1. Introducing Electronic Evidence in Family Law Cases Jeffrey Jacobs The Jacobs Patent Law Firm 281-496-5598 www.WiredPatents.comPatentAttorney@WiredPatents.com

2. Lots of surveillance software Popular software to snoop on email, chat, IM, porn - can store or email: • TechAssist • Spector (SpectorSoft, eBlaster) 57% of online time is spent communicating, i.e., email, IM, & chat. 79% of all illegal wiretaps are domestic disputes. - FBI Most surveillance software is un-removable and undetectable by common “surveillance removal software” such as Nitrous Anti-Spy, SpyCop, AdAware, and Spybot Search & Destroy. Surveillance software can snoop within password-protected and/or encrypted files and email accounts, since the surveillance software actually captures the passwords themselves. Even without surveillance software, your browser is probably keeping track of what websites you visit. Lots of websites, such as sites explaining a disease, can be embarrassing without being illegal. Also: Hex editors can reveal snippets of documents.

3. Relying on the Internet and computers for privacy Premises security at law firms (and I’m sure other organizations) is pretty bad. Sniffers. “Magic Lantern”

4. “Why would you ever say that on line?” Most people fear surveillance but do little to stop it. Some believe (incorrectly) that • our service providers protect our privacy for us, • we are too unimportant to be monitored, • we have nothing to hide, • snoopers follow strict controls, or • surveillance is rare. Electronic surveillance is better than human snooping. It never tires, never forgets, works from a great distance, can hide in tiny places, amplifies sound, is impossible to discover, and can be plausibly repudiated if discovered.

5. Relying on the Internet and computers for privacy So: the adverse party is going to get every scrap of communication your client thought was private. Are you going to be able to keep it out of evidence?

6. Basis for excluding evidence Moral basis for excluding evidence: punish “snooping” itself. • To punish snooper for committing a tort • To punish snooper for committing a crime • To punish attorney for unethical behavior • To regulate evidence (under evidence code) Legal basis for excluding evidence: • Torts: (1) intrusion upon seclusion; (2) publication of private facts • Crimes: (1) Wiretap Act; (2) Stored Communications Act • Defenses: (1) consent, including vicarious consent and implied consent; (2) spousal immunity and “marital home” exceptions

7. Warren/Brandeis Article – defining “Privacy” torts • (1890) Samuel Warren and Louis Brandeis' law review article, The Right to Privacy–The right to privacy is "the most comprehensive of rights and the right most valued by civilized men.”“Privacy” torts depend on an “expectation of privacy.” • William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 383 (1960). • Restatement (Second) of Torts 652D (1977). • There are four “Privacy” torts: • 1. Seclusion intrusion • 2. Identity appropriation • 3. Disclosure of secrets • 4. False publicity • Thus, snooping can violate two types of tort laws: • The snooping itself may intrude upon “seclusion.” • Using the information obtained from snooping may be “disclosure of secrets.”

8. Expectation of privacy: both subjective and objective Seclusion intrusion: a subjective element, and an objective element (society must be “shocked” by the intrusion) But: Does any surveillance really shock society? • Security cameras (with facial recognition) and traffic cameras • cell phones (e.g., e911) • Onstar • satellite photos • RFID, etc. • Choicepoint • Even atty-client privilege is under attack. "[Privilege] is to be strictly confined within the narrowest possible limits consistent with the logic of its principle.” In re Horowitz, 482 F.2d 72, 81 (2d Cir.), cert. denied, 414 U.S. 867 (1973) Can any privacy expectations ever be reasonable? Are there any limits to the variety of electronic evidence?

9. ABA Opinion 99-413 “A lawyer may transmit information relating to the representation of a client by unencrypted e-mail …because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail.” In a footnote, the ABA urges each lawyer to “consider with her client the sensitivity of the communication, the costs of its disclosure, and the relative security of the contemplated medium of communication. Particularly strong protective measures are warranted to guard against the disclosure of highly sensitive matters. …The lawyer must, of course, abide by the client's wishes regarding the means of transmitting client information. • As password/encryption technology becomes more commonly used, will your client’s failure to use them constitute a waiver of his privacy expectations?

10. Other tort law predicates to exclude evidence Note: most of these torts are available only in a few states. • Trespass to chattels. • Spousal Emotional Abuse; IIED; NIED; Alienation of Affections, Breach of Promise to Marry, and Related Torts; (the snooping itself). • Publication as a tort, independent of the intrusion tort. • But: all divorces make facts public. • Other legal procedures for excluding evidence. • Federal Rule civil procedure rule 26(c)

11. Tort law concepts of privacy invade the Fourth Amendment The pre-60s approach: • Weeks v. United States, 232 U.S. 383 (1914). (Exclusionary rule) • Olmstead v. United States, 277 U.S. 438, 476 (1928) • "constitutionally protected area" • The Communications Act of 1934 explicitly prohibited all law enforcement use of wiretapping.47 U.S.C. §605 (1958).

12. Tort law concepts of privacy invade the Fourth Amendment The modern approach: • Katz v. United States, 389 U.S. 347 (1967) overturns Olmstead. • the "Fourth Amendment protects people, not places" • . A person must demonstrate an "actual (subjective) expectation of privacy" and "the expectation [must] be one that society is prepared to recognize as "reasonable.'" 389 U.S. at 360-61 (Harlan, J., concurring). • Berger v. New York, 388 U.S. 41, 60 (1967) • “unconstitutional general warrant,” "roving commission“ • Schwartz v. Texas, 344 U.S. 199, 203 (1952), overruled by Lee v. Florida, 392 U.S. 378 (1968). Lee now prohibits local police from using evidence obtained by violating federal law.

13. Privacy concepts invade criminal law Omnibus Crime Control And Safe Streets Act (“OCCSSA,” 1968) • Included a Wiretap (Title III; formerly, 18 U.S.C. 2511) statute that incorporates “Expectation of Privacy.” The Electronic Communications Privacy Act (ECPA,” 1986) • Title I of ECPA re-created the “Wiretap” Act as 18 U.S.C. §2510 • Title II of ECPA created the “Stored Communications” Act (18 U.S.C. § 2701) • Title III of ECPA is merely a list of exceptions, 18 U.S.C. 2511(2)(g)(i).

14. Using the Wiretap Act (ECPA Title I) to exclude evidence • The Wiretap Act explicitly requires that wiretap evidence be excluded from evidence in civil litigation. • Texas’s wiretapping statute. Tex. Pen. Code Ann. 16.02; Tex. Code Crim. P. Ann. art. 18.20 But: The Wiretap Act is notorious for its vagueness. • Case law has applied the Wiretap Act only to: • real-time interception • of aural communications (i.e., not security-camera photos) • using an instrumentality of interstate commerce • without consent (consent may be inferred, and is sometimes vicarious) - If any one party consents, recording is legal. • in states that do not have a marital exception (some courts infer Cong’l reluctance to regulate domestic matters, which are best left to states). Does not ever include stored voicemail. 18 U.S.C. 2510(1) (2001) What about VoIP?

15. Using the Wiretap Act (ECPA Title I) to exclude evidence States can give higher protections. • States like Florida (Fla. Stat. Ann. 934.03(3)(d)(2000); also Wood v. Florida, 654 So.2d 218, 220 (Fla. Dist. Ct. App. 1995) )) , Pennsylvania (18 Pa. Cons. Stat. Ann. 5704(4)(1998)), Maryland (Md. Code Ann., Cts. & Jud. Proc. 10-402(c)(3)(1998), and California (Cal. Penal Code 631(a)(1998)) require both parties to consent before a recording is legal. Some states actually weaken protections: • Mississippi has an explicit marital exception to its wiretap law. Wright, 70 So.2d 274 (Miss. 1997).

16. ECPA Title I: “Real-time” interception? • Some cases: • US v. Turk, 526 F.2d 654 (5th Cir. en banc 1976); • Steve Jackson Games, Inc. v. US Secret Service, 36 F.3d 457 (5th Cir. 1994); • United States v. Moriarity, 962 F. Supp. 217, 220-21 (D. Mass. 1997). • Fraser, 135 F. Supp. 2d 623 ("The common meaning of 'intercept' is 'to stop, seize, or interrupt in progress or course before arrival.“); • United States v. Scarfo, 180 F. Supp. 2d 572, 581-83 (D.N.J. 2001); • United States v. Steiger, 318 F.3d 1039 (11th Cir. 2003) “…a contemporaneous interception -- i.e., an acquisition during flight' -- is required to implicate the Wiretap Act with respect to electronic communications.“ Also, In re Doubleclick, Inc., 154 F. Supp. 2d 497, 511-13 (S.D.N.Y. 2001)

17. Circuit split: marital exception to Wiretap Act? Some courts have created doctrines of implied consent, vicarious consent, inter-spousal immunity, and “marital home” exceptions. 18 U.S.C. § 2510(5)(a)(i). In the 2nd and 5th Circuits: No one gets punished for tapping a spouse, and evidence gets in. • Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974); Farr 940 P.2d 679 (Wa. Ct. App. 1997); Heggy v. Heggy, 944 F.2d 1537 (10th Cir. 1991), cert. denied 503 U.S. 951 (1992);Robinson v. Robinson, 499 So.2d 152 (La. Ct. App. 1986);Heyman v. Heyman, 548 F. Supp. 1041 (N.D. Ill. 1982);Anonymous v. Anonymous, 558 F.2d 677 (2nd Cir. 1977);London v. London, 420 F. Supp. 944 (S.D.N.Y. 1976); Schieb; Newcomb, 944 F.2d at 1536; andAnonymous, 558 F.2d at 679.

18. Circuit split: marital exception to Wiretap Act? In the 4th, 6th, 8th, 10thCircuits: There is no marital exception; nonconsensual wiretapping is illegal, and all consensual wiretaping cannot be excluded. • Pritchard v. Pritchard, 732 F.2d 372 (4th Cir. 1984); Kratz v. Kratz, 477 F. Supp. 463 (E.D. Pa. 1979); USA v. Jones, 542 F.2d 661 (6th Cir. 1976); Turner v. P.V. Int'l Corp., 765 S.W.2d 455 (Tex. Ct. App. 1988); People v. Otto, 831 P.2d 1178 (Ca. 1992); Kempf v. Kempf , 868 F.2d 970 (8th Cir. 1989); Collins v. Collins, 904 S.W.2d 792 (Tex. Ct. App. 1995); Platt v. Platt, 951 F.2d 159 (8th Cir. 1989); Ransom v. Ransom, 324 S.E.2d 437 (Ga. 1985); andMarkham v. Markham, 272 So. 2d 813 (Fla. 1973)

19. Vicarious Consent Consent may be inferred from joint ownership of the computer. “Vicarious consent” allows a custodial parent to record the child’s conversations, if the court believe the reason for the wiretap was the child’s welfare or best interests. Issues: • recorded conversation includes CPS, an attorney, or a counselor? • recording is done inside non-custodial parent’s home? and • joint custody? Granted summary judgment to custodial parents who recorded minor children's telephone conversations with non-custodial parents: • Thompson v. Dulaney, 970 F.2d 744, 748 (10th Cir. 1992) ; Pollock v. Pollock, 975 F. Supp. 974 (W.D. Ken. 1997); Silas v. Silas, 680 So. 2d 368 (Ala. Civ. App. 1996); Cacciarelli v. Boniface 737 A.2d 1170 (N.J. Sup. Ct. Ch. Div. 1999);Campbell v. Price, 2 F. Supp. 2d 1186 (E.D. Ark. 1998); and State v. Diaz, 706 A.2d 264 (N.J. Super. Ct. App. Div. 1998)

20. State-based Wiretapping Statutes • Texas: Tex. Code Crim. P. Ann. art. 18.20 (West Supp. 1999). • Every state except Vermont has a state-law wiretapping statute. 18 U.S.C. 2510-2522 (1994); Ala. Code 13A-11-31 (1994); Alaska Stat. 42.20.310 (Michie 1998); Ariz. Rev. Stat. Ann. 13-3005 (West 1989); Ark. Code Ann. 5-60-120 (Michie 1997); Cal. Penal Code 632 (West 1988 & Supp. 1998); Colo. Rev. Stat. 18-9-303 (1997); Conn. Gen. Stat. Ann. 53a-189 (West 1994); Del. Code Ann. tit. 11, 1336 (1995); D.C. Code Ann. 23-542 (1996); Fla. Stat. Ann. 934.03 (West 1996 & Supp. 1999); Ga. Code Ann. 16-11-62 (1996); Haw. Rev. Stat. 803-42 (1993); Idaho Code 18- 6701 (1997); 720 Ill. Comp. Stat. Ann. 5/14-2 (West 1993); Ind. Code Ann. 35-33.5-5-5 (Michie 1998); Kan. Stat. Ann. 21-4002 (1995); Ky. Rev. Stat. Ann. 526.020 (Banks-Baldwin 1995); La. Rev. Stat. Ann. 15:1303 (West 1992); Me. Rev. Stat. Ann. tit. 15, 710 (West 1980 & Supp. 1998); Md. Code Ann., Cts. & Jud. Proc. 10-402 (1998); Mass. Ann. Laws ch. 272, 99(c)(1) (Law. Co-op. 1992); Mich. Comp. Laws Ann. 750.539c (West 1991); Minn. Stat. Ann. 626A.02 (West 1983 & Supp. 1999); Miss. Code Ann. 41-29-533 (1993 & Supp. 1998); Mo. Ann. Stat. 542-402 (Supp. 1998); Mont. Code Ann. 45-8-213 (1997); Neb. Rev. Stat. 86-702 (1994); Nev. Rev. Stat. Ann. 200.620 (Michie 1997); N.H. Rev. Stat. Ann. 570-A:2 (1986 & Supp. 1998); N.J. Stat. Ann. 2A:156A-3 (West 1985 & Supp. 1998); N.M. Stat. Ann. 30-12-1 (Michie 1997); N.Y. Penal Law 250.05 (Consol. 1989); N.C. Gen. Stat. 15A-287 (1997); N.D. Cent. Code 12.1-15-02 (1997); Ohio Rev. Code Ann. 2933.52 (Banks-Baldwin 1997); Okla. Stat. Ann. tit. 13, 176.3 (West 1994 & Supp. 1999); Or. Rev. Stat. 165.543 (1997); 18 Pa. Cons. Stat. Ann. 5703 (West 1983 & Supp. 1998); R.I. Gen. Laws 11-35-21 (1994); S.C. Code Ann. 16-17-470 (Law. Co-op. 1985 & Supp. 1997); S.D. Codified Laws 23A-35A-20 (Michie 1998); Tenn. Code Ann. 39-13-601 (1997); Tex. Code Crim. P. Ann. art. 18.20 (West Supp. 1999); Utah Code Ann. 76-9-403 (1995); Va. Code Ann. 19.2-62 (Michie 1995); Wash. Rev. Code Ann. 9.73.030 (West 1998); W. Va. Code 62-1D-3 (1997); Wis. Stat. Ann. 968.31 (West 1998); Wyo. Stat. Ann. 7-3-602 (Michie 1997).

21. The “Stored Communications” Act (ECPA Title II) 18 U.S.C. § 2701: Stored Communications (a) Except as provided in subsection (c) of this section whoever – • (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or • (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section. 18 U.S.C. § 2702 imposes a confidentiality obligation on ISPs, but there is a very broad “good faith” exception.

22. Using the “Stored Communications” Act (ECPA Title II) to exclude evidence • More importantly, evidentiary exclusion is not among the remedies. • civil damages under § 2707 • criminal prosecution under § 2701(b) • incarceration up to two years • but no exclusion from evidence. 2518(10)(c). • § 2707's civil cause of action and § 2701(b)'s criminal penalties 'are the only judicial remedies and sanctions.’§2708, entitled 'Exclusivity of Remedies’ • Court orders are easier to obtain than for wiretaps, but the court “may” (not “shall”) award damages of only $1000, not $10,000 as for wiretap. • Note that the PATRIOT Act amendments make voicemail into the legal equivalent of email.

23. Using the ECPA Exceptions (ECPA Title III) Title III: eliminates protection for some of what most people know is being recorded, such as pen registers, and “attributes” used for routing, may be freely accessed. The government can access this freely, but (theoretically) is supposed to notify a federal judge (who cannot object, and who cannot notify even the Congress that the info has been accessed). (Includes Carnivore-type email filters.) Also: immunizes switchboard operators, agents of communications service providers, and some governmental employees, who get information as part of their jobs. If Congress had meant to let spouses snoop, Congress might have said so here. But spouses are not listed among the exceptions. But: Congress may have omitted spouses because Congress wanted to defer to states.

24. Other federal laws the snooper might have violated • Cable Communications Policy Act (1984) – Privacy of Subscriber info • CAPPS II – airline passenger data • Drivers Privacy Protection Act (1994), 18 U.S.C. 2721-2725 (2002) • Electronic Communications Privacy Act (1986), 5 U.S.C. 552a (2002) • Electronic Fund Transfer Act • Fair Credit Reporting Act • Family Educational Rights and Privacy Act (1974) 20 U.S.C. 1232g (2002) • No Child Left Behind Act (2001) • HIPAA Privacy Rules (April 14, 2004) • Homeland Security Act (2003) • Telecommunications Act (1996) (in particular, Section 222) • Right to Financial Privacy Act (1978) • Federal Communications Act, 47 U.S.C. § 605 (1934; 1994) • Bank Secrecy Act • Children's Online Privacy Protection Act of 1998, 15 U.S.C. 6501-6503 (2002) • Fair and Accurate Credit Transactions Act (2003) • Home Equity Loan Consumer Protection Act • Privacy Act (1974), 18 U.S.C. 2510-2522, 2701-2709 (2002) • Privacy Protection Act (1980) • USA PATRIOT Act (2001) • Video Privacy Protection Act (1988) (“Bork”) 18 U.S.C. 2701 (2002) • Wireless Communications and Public Safety Act (1999) – privacy aspects of E911 • CAN-SPAM Act: 18 U.S.C. § 1037 (2003) • 5 USC 552a (b) and (g) • CALEA • FRCA • 15 USC 1693, 1666, 6102-07, 5701, 5711-13, 5721, 5724 • 18 USC 1344, 1028(a)(5), 1028(a)(7), 1029,1030(a)(4), 1301-03, 1343 , 1344, 1956, 1957, 2326, 2510-2522, 2721 • 39 USC 3005, 1341-45 • HR 1731 (2004), HR 2036 (2003), 45 CFR 164.308(a)(6)(ii)

25. European Perspective The evidence produced by snooping would probably be easier to exclude in Europe. The European Union’s Directive 95/46/EC of 1995: • “Whereas data-processing systems are designed to serve man; whereas they must, whatever the nationality or residence of national persons, respect their fundamental rights and freedoms, notable the right to privacy,…”

26. Summary Common law privacy torts are not strong enough to keep evidence out, since • (1) inter-spousal (and therefore not commonly entertained), • (2) “intent” may be negated by subjective belief in consent arising from the relationship, and • (3) expectation of privacy might not be reasonable, due to societal changes. • may regulate even silent surveillance, and thus even emails and voicemails, under either privacy or publication torts. The tort is particularly actionable if there is any attempt to segregate email accounts by the use of passwords.

27. Summary Federal Wiretap Act (and Texas tracks the federal statute) • protects only real-time interception of aural communications using an instrumentality of interstate commerce without consent in circuits that do not impose a marital exception. • Minority of states allow surreptitious recording of spouse on marital home phone. • Most states allow parents to record minor children on extension phone. Some states allow vicarious consent for best interest of child, except that third party (party to conversation) may object; also, joint custody makes vicarious consent nonsense. Stored Communications Acts • regulate email and voicemail, but allow evidence since such recordings are not in “electronic storage” (as that phrase is interpreted legally). Remedies for these violations must be found outside of evidentiary exclusion (even illegally obtained evidence would thus be admissible).

28. Using the Wiretap Act (ECPA Title I) to exclude evidence 18 U.S.C. § 2510(1) (1992) "Wire communication" means • “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce” [removed by 2002 amendment: “and such term includes any electronic storage of such communication”]…[removed by 1994 amendment: “, but such term does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit”].