Beverley Ann O'Brian installed a surveillance program called
Spector on the computer used by her husband James. She obtained
transcripts of private on-line chats between James and another
woman with whom he was playing Yahoo Dominoes, according to court
papers.
The Circuit Court for Orange County, Florida, found that
evidence obtained in this way could not be used in court because it
had been intercepted – an offence under federal wiretapping
regulations and the Florida Security of Communications Act 2003. It
banned Mrs O'Brian from using spyware in the future and from
disclosing any information obtained from the surveillance.
Mrs O'Brian appealed, arguing that the evidence should have been
admissible, as it had been obtained by copying information stored
on the computer, and not through the interception of electronic
communications.
Spyware comes in various guises. It can be a program downloaded
to a computer, or a hardware device plugged into the back of the
keyboard; but in general terms it is a device that can record
e-mail messages, chat room conversations, passwords and any other
computer activity.
In this case the software took snapshots of the computer screen.
The question for the appeals court was whether the surveillance
amounted to an interception or, as Mrs O'Brian argued, was merely
the retrieval of information stored on the computer.
Giving the ruling on behalf of the three-panel court, Chief
Judge Thomas D Sawaya said that there had been an interception.
"The federal courts have consistently held that electronic
communications, in order to be intercepted, must be acquired
contemporaneously with transmission and that electronic
communications are not intercepted within the meaning of the
Federal Wiretap Act if they are retrieved from storage," wrote the
Judge.
In this case, he said, the software intercepted the
communications as they were transmitted. The fact that the data
sent was of a screen snapshot did not mean that it had been stored
by the computer.
"We do not believe that this evanescent time period is
sufficient to transform acquisition of the communications from a
contemporaneous interception to retrieval from electronic storage,"
he explained.
As it is illegal to intercept electronic communications, the
lower court was therefore entirely within its rights to refuse to
accept the evidence, said the court.
