Mimesis Law
22 February 2017

Cheating Husband Sues Wife Under the Wiretap Act; Judge Posner Salty

December 23, 2016 (Fault Lines) – Title III of the Omnibus Crime Control and Safe Streets Act of 1968 sounds like a forgettable piece of legislation—or perhaps a potentially worrisome piece of legislation. After all, omnibus bills are usually filled with items that cannot pass on their own, but through the magic of log rolling, the entire bill gets passed. This omnibus though, particularly Title III, is remarkable.

Title III is commonly referred to as the Wiretap Act. Although Congress had first addressed wiretapping in same 1934 Act that created the FCC, it mostly dealt with regulating the communications company and prohibiting publication of the contents of wiretaps. As technology improved, as to allow hidden transmitters in olives, this proved insufficient.

So, under the Wiretap Act, Congress outlawed the attempted or actual interception of “any wire, oral, or electronic communication….” Interception became the illicit act, rather than disclosure. After the Church Committee’s report, Congress put more restrictions on how national security investigations used these tools. Then, in 1986, somehow way ahead of the technological curve, Congress broadened the Act to cover stored communications. Later, aspects of this scheme was upset by the Patriot Act and other subsequent legislation aimed at terrorism.

As tends to happen with old legislation that gets broadened through updates, it can apply in surprising and perhaps unintended ways. Take for example the Epsteins. Barry and Paula Epstein were married for 41 years. Paula filed for divorce in 2011, citing Barry’s infidelity. How Paula was certain of Barry’s carousing came to light after a discovery request from Barry’s lawyer.

Perhaps inspired by the television show Cheaters, or too cheap to pay for a private investigator, Paula engaged in a little self-help. As it turns out, Barry was not the most savvy of cheaters. His wife had the ability, at least once, to access the email account he used to carry on his philandering. So, she set up an email rule that would forward to her email account Barry’s email messages.

This meant Paula would see Barry’s love notes without Barry knowing. It had the added of advantage of obviating the need to login regularly and avoided the possibility Barry would delete emails before she could see them. Similarly, if Barry felt the heat and changed his password, Paula would still receive the emails. It was a rather elegant solution. Except it was potentially an illegal one.

Once Barry received discovery containing his own emails, he behaved in the calm, measured way that parties to five-year ongoing divorce usually do. Kidding. He filed a federal suit against Paula and her attorney claiming a violation of the Wiretap Act.

Aside, the choice to sue the opposing lawyer makes one wonder what the backstory is there. As the decision points out, the lawyer was merely facilitating the discovery request. Moreover, once Barry lost at the trial court, he, through his lawyer, tried to argue the lawyer was still on the hook because he talked to other lawyers in his own firm. This was a rather novel claim and making it against the attorney seems aggressive. Altogether, this certainly suggests that there was some bad blood between the lawyers.

Paula filed a motion to dismiss, claiming that the complaint failed to state a claim. The essence of her argument was that the time stamp on the emails, which were attached to the complaint, do not show that she intercepted the communication contemporaneously when they were transmitted. For example, the email sent by Barry might have been time stamped 12:00, but the time stamp on the forwarded email might show Paula received it at 12:45.

Several circuits have held that the interception has to be contemporaneous with the transmission to violate the Wiretap Act. So, it’s not a bad argument to make to get the whole thing dismissed. And it persuaded the District Court:

Each email also shows the time Paula’s email client received the forwarded message from Barry’s account. The district judge read these “sent” and “received” markings in the defendants’ favor, noting that there are gaps between the time Barry sent or received an email and the time Paula received the forwarded email. The judge observed that “[t]he shortest interval between an original email[] and the email forwarding it to Paula’s account[] is approximately three hours.”

The Seventh Circuit was less persuaded:

Although this reasoning seems sensible on its face, there are three independently sufficient reasons why the time markings on the emails do not establish an “impenetrable defense” to the Wiretap Act claims.

First, the judge misunderstood when an interception occurs. He assumed that the time Paula’s email client received the forwarded emails was the moment of interception. Although this interpretation of “interception” is understandable, we explained in Szymuszkiewicz that the interception of an email need not occur at the time the wrongdoer receives the email; in Szymuszkiewicz “[t]he copying at the server was the unlawful interception.” 622 F.3d at 704.

In other words, even if the receipt of the intercepted communication is delayed, the focus is still when the interception occurred. So, if the rule Paula established caused the server instantaneously to make a copy, then that’s what mattered, even if the actual delivery happened hours later.

Second, the judge mistakenly conflated the emails Barry received and those he sent.

This is closely related to the first point, varying more in the specific facts the Court applied it too. If the gloss on the statute requires a contemporaneous interception, then, to win the motion to dismiss, the defendant can show that it happened after the fact. In the case of the emails Barry sent, there is evidence of when Paula received the forwarded email but not when it was delivered to the intended recipient. The absence of contrary evidence allows the pleaded facts to prevail enough to avoid a motion to dismiss. Maybe later Paula can show that the emails only forwarded after delivery, which would not be a wiretap violation. But for now, Barry gets to prosecute his claim.

Finally, it’s highly unlikely that the exhibit attached to the complaint contains all the emails that were forwarded to Paula’s email addresses. It’s difficult to imagine what filtering algorithm Paula’s auto-forwarding rule could have used that would have limited the interception to the small collection of email messages that are contained in the exhibit.

Barry alleges that Paula’s auto-forward rule was in place for as long as five years; it’s more likely that these few dozen emails are only a small fraction of a much larger volume. Because the emails attached to the complaint do not conclusively establish that there was no contemporaneous interception, Barry did not plead himself out of court.

Saved by the inference. The Court concludes that even if all the attached emails conflicted with Barry’s complaint, there are likely many other emails which could support his claim. So, again, he gets a chance to make his case, rather than get bounced on a procedural ruling.

Judge Posner, ever the pragmatist, concurs, but calls into question whether the Wiretap Act should apply. While most judges would be content with reading the statute and interpreting it according precedent and existing rules, Judge Posner thinks big picture. First, he argues that privacy is an act of concealment. Okay, sure. You draw the blinds because you want to conceal from the neighbors what you are doing. He goes a little further and acknowledges that it’s acceptable to conceal disreputable facts.

But Judge Posner draws the line at a right to conceal genuine misconduct. As a general matter, this line drawing lacks conceptual clarity. The line between disreputable facts and facts about misconduct is a pretty hazy one. For Judge Posner, marriage infidelity falls on the side of misconduct. In conclusory fashion, he declares that there is no social benefit to protecting this sort of privacy. Absence of evidence is not evidence of absence. He then goes on:

We might compare Mrs. Epstein to a bounty hunter—a private person who promotes a governmental interest. She has uncovered criminal conduct hurtful to herself, and deserves compensation, such as a more generous settlement in her divorce proceeding.

Her husband’s suit under the Federal Wiretap Act is more than a pure waste of judicial resources: it is a suit seeking a reward for concealing criminal activity.

Paula the Bounty Hunter. In Posner’s world, only righteous deserve privacy—because pragmatism or something. For the rest of us, do not auto-forward your cheating spouse’s emails. Do the respectable thing and get photos of them caught in the act.

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  • Jim Tyre
    23 December 2016 at 11:15 am - Reply

    I saw the decision a week or so ago. One of my “favorite” lines from it goes to teaching an old law to do new tricks:

    Paula, on the other hand, technically fall within the language of the Act, though Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding.

    (Blame Posner, not me, for the singular fall.)

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