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.