My recollection is that the divorce rate in Mississippi is approximately 51-52% for first marriages. It is slightly higher with second marriages. With the divorce rate that high it is no wonder the private detective and spyware business is booming. In this Bog I would like to bring some legal issues to your attention if you find yourself about to engage a detective or buy spy equipment. You should be careful you do not violate any criminal laws or commit some serious invasion of privacy.
Over 40 years ago Congress passed a wiretap act prohibiting law enforcement or anyone else from secretly recording another person’s telephone calls if that person has a “reasonable expectation of privacy.” The term reasonable expectation of privacy” came from a U.S. Supreme Court case and it is an important term discussed, written about, and fought over in Federal and State Courts every day across the United States. In a nutshell it means you should not record another person’s phone calls if a reasonable person would expect the calls to be private. So making a call from a public phone or from a cell phone where other people can hear you talk and maybe hear the person on line with you does not give you a reasonable expectation of privacy. Using your home landline in a closed bedroom does give you a reasonable expectation of privacy with one big exception in Mississippi.
When Congress passed the Omnibus Crime Control Act of 1966 there were no computers or cell phones. The law seemed clear-no recording of other’s phone calls. But the various federal courts that began interpretating the Omnibus Crime Control Act did not agree on what the new terms and definitions meant. A few federal courts across the country created an exception for recording phone calls between spouses that take place in the home on a landline. This has been called by the Fifth Circuit Court of Appeals the domestic relations exception to the wiretap act. It simply means this: If you can pick up an extension in your house and listen to a phone call then you can record the phone call.
The opinion of the Fifth Circuit which created the domestic relations exception has been criticized because there is no domestic relations exception in the wiretap act passed by Congress. What the opinion allows is one spouse to record the phone calls of the other spouse inside the marital home on a landline. Some Interesting questions not fully answered by the Fifth Circuit are: What if there are no extensions in the house? Can a spouse still record the other spouse’s telephone conversation? What if the phone is just in the name of one spouse who pays for it completely with his/her own money? These could be questions still subject to debate and change.
The majority of the Federal Circuit Courts do not recognize any domestic relations exception. In fact over the years since the Simpson case was decided by the Fifth Circuit Court of Appeals the majority of the other Federal Courts that have dealt with spousal wiretapping have not held there was any spousal or domestic relations exception. When the Fifth Circuit Court of Appeals was split and the Eleventh Circuit Court of Appeals was created, the Eleventh Circuit Court of Appeals rejected the domestic relations exception to the wiretape act.
With the development of the computer and other means of communication Congress moved to provide additional protection for wire or e mail communications as e mails travel through the internet and as e mails are stored. These Federal Laws provide privacy rights and protections against intercepting e mails while they move through the internet and while they are stored with third party repositories (ISP’s). There are even laws against violating the terms of service of the internet providers. Here is a good source for identifying what may be legal and what may be illegal. If you have enough interest be sure to review the Appendix.
In addition to the Federal Laws the State of Mississippi has a law called the Interception of Wire or Oral Communications Act. (MIss. Code Ann. Section 41-29-501, et seq). This law makes it illegal and provides for civil penalties for intercepting wire or oral communications if the person who has had them intercepted had a reasonable expectation of privacy in either the calls or wire transmissions. However, in the case Wright v. Stanley, 700 So. 2d 274, (Ms. Sp Ct, 1998) the Mississippi Supreme Court held there was no prohibition against a spouse secretly recording the phone calls of another spouse or children in the marital home.
In addition to the Federal and State criminal laws that might be violated by the interception of telephone calls or e mails, the right of privacy may also be violated. The “outer limits” of the right of privacy have never been established by the Mississippi Supreme Court and this may be a new up and coming civil right. I have heard of spouses installing spyware on a joint computer or family computer. This type of spyware records every website visited, it records the passwords, and e mails sent from or received into the computer. I have heard of spouses putting spy cameras in their homes to surreptitiously spy on their spouse. If a computer has a camera on it the camera can be activated from out side the home and set to record inside the home. There are also electronic tracking devices that can be placed on an automobile allowing the auto to be tracked day and night. Almost any type of tracking device or spyware is available and for purchase these days.
In this Blog I am not stating which of these types of activities are legal and which may be illegal. Some may be very gray and by that they may be capable of appearing both legal and illegal depending on the interpretation of the relevant court. What I am suggesting is that anyone considering the use of these types of spy equipment should probably consult an attorney first! I have an opinion that sooner or later some of the actions of a spouse who uses some of this spyware or devices may find themselves charged with a crime or at the other end of a civil lawsuit charging an invasion of privacy, and included in that lawsuit is anyone who helped the spouse use the spyware.
Merrida Coxwell is the managing partner with Coxwell & Associates, a law firm focusing on criminal state and federal defense, serious personal injury, financial fraud, and limited general litigation. Frank Coxwell, a member of the firm handles consumer bankruptcy and other predatory lending issues. Merrida has been practicing law for over 30 years and is known statewide for his dedication and persistence to his client’s defense and needs.
Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.