IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005 BEVERLY ANN O'BRIEN, Appellant, V. v. Case No. 5D03-3484 JAMES KEVIN O'BRIEN, Appellee. / Opinion filed February 11, 2005 Appeal from the Circuit Court for Orange County, Donald E. Grincewicz, Judge. Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant. David F. Allen, Winter Park, for Appellee. SAWAYA, C.J. Emanating from a rather contentious divorce proceeding is an is an issue issue we must we must resolve regarding application of of certain provisions of of the the Security of Communications of Act (the Act) found in in Chapter 934, 934, Florida Florida Statutes Statutes (2003). Specifically, we we must must determine whether the trial court properly concluded that pursuant to to section 934.03(1), Florida Statutes (2003), certain communications were inadmissible because they they were were illegally intercepted by the the Wife Wife who, who, unbeknownst to the to the Husband, Husband, had installed had installed a a
spyware program on a computer used by the Husband that copied and stored electronic communications between the Husband and another woman. When marital discord erupted between the the Husband and and the Wife, the Wife, the Wife the Wife secretly installed a spyware program called Spector on on the the Husband's Husband s computer. It isit is undisputed that the Husband engaged in private in private on-line on-line chats chats with with another another woman woman while playing Yhoo Yahoo Dominoes on on his his computer. The The Spector Spector spyware spyware secretly secretly bok took snapshots of what appeared on on the the computer computer screen, screen, and the and frequency the frequency of these of these snapshots allowed Spector to capture to capture and and record record all chat all conversations, chat conversations, instant instant messages, e-mails sent and and received, and and the the websites websites visited visited by the by user the of user the of the computer. When the Husband discovered the Wife's Wife s clandestine attempt to to monitor and record his conversations with with his his Dominoes Dominoes partner, partner, the Husband the Husband uninstalled uninstalled the the Spector software and filed a Motion for Temporary Injunction, which was was subsequently granted, to prevent the the Wife Wife from from disclosing disclosing the communications. the Thereafter, Thereafter, the the Husband requested and and received a permanent a permanent injunction injunction to prevent to prevent the Wife'sthe Wife s disclosure of the communications and to prevent her from engaging in this activity in the future. The latter motion also requested that the the trial trial court court preclude introduction of the of the communications into evidence in in the the divorce divorce proceeding. proceeding. This request This request was alsowas also granted. The The trial trial court, court, without without considering considering the communications, the communications, entered entered a final a final judgment of of dissolution of of marriage. The Wife The moved Wife moved for rehearing, for rehearing, which waswhich was subsequently denied. The Wife appeals the order granting the permanent injunction, the final judgment, and the order denying the Wife's Wife s motion for for rehearing on on the the narrow issue issue of whether of whether the trial court erred in in refusing to to admit evidence of of the the Husband's Husband s computer activities 2
obtained through the spyware the the Wife secretly installed on on the the computer. The The Wife Wife argues that the the electronic communications do do not not fall under fall under the umbra the umbra of the Act of the Act because these communications were retrieved from from storage storage and, and, therefore, therefore, are not are not intercepted "intercepted communications" communications as as defined by by the the Act. Act. In opposition, In opposition, the Husband the Husband contends that the Spector spyware installed on on the the computer acquired acquired his electronic his electronic communications real-time as they were in in transmission and, and, therefore, are are intercepts illegally obtained under the Act. The trial court found that the electronic communications were illegally obtained in violation of section 934.03(1)(a)-(e), and so we begin our our analysis with with the the pertinent pertinent provisions of that statute, which subjects any person to criminal penalties who engages in the following activities: (a) Intentionally intercepts, endeavors to intercept, to intercept, or or procures any other person person to intercept to intercept or endeavor endeavor to to intercept any wire, oral, or electronic communication; (b) Intentionally uses, endeavors to use, to use, or procures or procures any any other person to to use use or endeavor endeavor to use to any use electronic, any electronic, mechanical, or or other other device device to intercept to intercept any oral any oral communication when: 1. Such device is is affixed to, to, or otherwise or otherwise transmits a signal through, a wire, a wire, cable, cable, or or other like connection used in in wire communication; or 2. Such device transmits communications by by radio or interferes with the transmission of such communication; (c) Intentionally discloses, or or endeavors to to disclose, to to any any other person the contents of of any any wire, wire, oral, oral, electronic or electronic communication, knowing or having reason to to know that that the the information was obtained through the interception of of a a wire, oral, or or electronic communication in violation in violation of this of this subsection; 3
(d) Intentionally uses, or or endeavors to to use, use, the the contents of of any wire, oral, oral, or or electronic electronic communication, knowing knowing or or having reason to to know that that the the information was was obtained obtained through the the interception of a of wire, a oral, wire, or oral, electronic or electronic communication in violation of this subsection; or (e) Intentionally discloses, or or endeavors to to disclose, to to any any other person the contents of of any any wire, wire, oral, oral, electronic or electronic communication intercepted by means by means authorized authorized by by subparagraph (2)(a)2., paragraph (2)(b), paragraph (2)(c), s. s. 934.07, or s. 934.09 when that person knows or or has reason to know that that the the information was was obtained obtained through through the the interception of such a a communication in in connection with with a a criminal investigation, has has obtained obtained or received or received the the information in connection with a a criminal investigation, and and intends to improperly obstruct, impede, or or interfere with with a a duly authorized criminal investigation; shall be punished as provided in subsection (4). 934.03(1)(a)-(e), Fla. Stat. (2003). Enactment of of these prohibitions connotes "a a policy decision by the Florida legislature to to allow allow each each party party to a to conversation a conversation to have to have an an expectation of privacy from interception by another party to the conversation." conversation. Shevin v. v. Sunbeam Television Corp., 351 So. 2d 723, 726-27 (Fla. 1977). The purpose of of the Act is to protect every person's person s right to to privacy and and to to prevent the the pernicious effect effect on all on all citizens who would would otherwise otherwise feel insecure feel insecure from intrusion from into intrusion their private into their private conversations and communications. Id. The clear intent of of the the Legislature in enacting section section 934.03 was to to make it it illegal for a person to to intercept wire, oral, oral, or or electronic communications. It is beyond It is beyond doubt that what the trial court excluded from evidence are "electronic electronic communications."1 communications. 1 1 'The term `electronic electronic communications" communications is is defined in in section 934.02(12), Florida Statutes (2003), as "any any transfer of of signs, signals, writing, writing, images, images, sounds, sounds, data, data, or or intelligence of of any any nature nature transmitted transmitted in whole in or whole in part or by in a wire, part radio, by a wire, radio, 4
The core of the issue lies in in whether the the electronic communications were were intercepted. The term "intercept" intercept is is defined by by the the Act Act as "the as the aural aural or other or acquisition other acquisition of the of the contents of of any any wire, wire, electronic, or oral communication oral communication through through the use the of any use of any electronic, mechanical, or other device." device. 934.02(3), Fla. Stat. (2003). We discern that there is is a rather a rather fine fine distinction distinction between between what is what transmitted is transmitted as electronic as an electronic communication subject to to interception and and the the storage storage of what of what has been has been previously previously communicated. It It is is here that we we tread upon new new ground. Because we we have have found found no no precedent rendered by the Florida courts that considers this this distinction, and and in in light light of of the fact that the Act was modeled after the Federal Wiretap Act,2 2 we advert to decisions by the federal courts that have addressed this issue for guidance. 3 The federal courts have have consistently held held that that electronic electronic communications, in in order to be intercepted, must be be acquired contemporaneously with with transmission and and that electronic communications are not intercepted within the the meaning of the of the Federal Federal Wiretap Act if they are retrieved from storage. See See Fraser v. v. Nationwide Mut. Mut. Ins. Ins. Co., Co., 352 F.3d 107 (3d Cir. Cir. 2003); Theofel v. Farey-Jones, v. 359 F.3d 1066 (9th Cir.), cert. denied, 125 S. Ct. 48 (2004); United States v. v. Steiger, 318 318 F.3d 1039 1039 (11th (11th Cir.), Cir.), cert. cert. electromagnetic, photoelectronic, or or photooptical system that that affects affects intrastate, interstate, or foreign commerce......." 2 2What we label the Federal Wiretap Act is found in 18 U.S.C. 2501, et et seq., as as amended by Title I of the Electronic Communications Privacy Act Act of of 1986, Pub. Pub. L. L. No. No. 99-508, Title I, 100 Stat. 1848 (1986). 3 3See Jackson v. State, 636 So. 2d 2d 1372, 1374 (Fla. (Fla. 2d 2d DCA DCA 1994) 1994) (stating, (stating, in reference to the Act, that that "[w]e [w]e also also examine examine its interpretation its by the by federal the federal courts courts under Florida s Florida's established rule of statutory construction which `which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as as in the in federal the federal courts courts to the extent to the the extent construction the construction is is harmonious with the spirit of the Florida legislation."') legislation. ) (quoting O'Loughlin O Loughlin v. v. Pinchback, 579 So. 2d 788, 791 (Fla. 1st DCA 1991)), approved, 650 So. 2d 24 (Fla. 1995). inter- 5
denied, 538 U.S. 1051 (2003); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), cert. denied, 537 U.S. 1193 (2003). These courts arrived at this at this conclusion based on the federal law definitions of of (1) (1) the the term term "intercept," intercept, which which is very is very similar similar to to the definition in the Florida Act, (2) the term "wire wire communication," communication, which provides for for electronic storage, and (3) the term "electronic electronic communication," communication, which does not provide for electronic storage. The fact that that the the definition of of "wire wire communication" communication provides for for electronic storage while the definition of "electronic electronic communication" communication does not, suggests to the federal courts that Congress intended "intercept' intercept to to include retrieval from storage of wire wire communications, but exclude but exclude retrieval from retrieval storage from of electronic storage of electronic communications. The definition of of "wire wire communication" communication in in the the Florida Florida Act, Act, unlike unlike the the Federal Wiretap Act, does does not not include include a provision a provision for retrieval for retrieval from storage from storage and, and, therefore, it is is not clear whether the the same same rationale would would be applied be applied by the by bderal the federal courts to provisions identical to the Florida Act. However, we we need need not not decide whether electronic communications may never be intercepted from storage under the Florida Act because the particular facts and and circumstances of the of instant the instant case case reveal reveal that the that the electronic communications were intercepted contemporaneously with transmission. The Spector spyware program that that the the Wife Wife surreptitiously surreptitiously installed installed on theon the computer used by the Husband intercepted and copied the the electronic communications as they were transmitted. We We believe believe that that particular particular method method constitutes constitutes interception interception within the meaning of of the the Florida Florida Act, and Act, the and decision the decision in Steiger in supports Steiger this supports this conclusion. In Steiger, an individual was able to to hack into the defendant's defendant s computer via via a Trojan horse virus that allowed the hacker access to pornographic materials stored on the hard drive. The The hacker hacker was was successful in transferring the pornographic the material material 6
from that computer to the hacker's hacker s computer. The The court court held held that that because because the the Trojan Trojan horse virus simply copied information that had previously been stored on the computer's computer s hard drive, the capture of of the electronic communication was was not not an an interception within within the meaning of of the the Federal Federal Wiretap Wiretap Act. The Act. court The did court indicate, did however, indicate, that however, that interception could occur if the virus or software intercepted the communication as it it was being transmitted and copied it. The court stated: [T]here is only a a narrow narrow window window during during which which an E-mail an E-mail interception may occur the occur-the seconds or or mili-seconds before before which a a newly newly composed composed message message is saved is to saved any to any temporary location following a a send command. Therefore, unless some type of automatic routing software is is used (for (for example, a duplicate of of all all of of an an employee's employee s messages are are automatically sent to the employee's employee s boss), interception of E- mail within the prohibition of of [the Wiretap Act] is is virtually impossible. Steiger, 318 F.3d at 1050 (quoting Jarrod J. J. White, E-Mail@Work.com: Employer Employer Monitoring of Employee E E-Mail, 48 Ala. L. L. Rev. 1079, 1083 (1997)). Hence, a a valid valid distinction exists between a spyware program similar to to that that in Steiger, in Steiger, which which simply simply breaks into a computer and retrieves information already stored on the hard drive, and a spyware program similar to to the the one one installed by by the the Wife Wife in the in instant the instant case, case, which which copies the communication as it is transmitted and routes the copy to a storage file in the computer. The Wife argues that the communications were in in fact fact stored before acquisition because once the text image became visible on the screen, the communication was no no longer in transit and, therefore, not not subject subject to intercept. to intercept. We disagree. We disagree. We do not We do not believe that this evanescent time time period period is sufficient is sufficient to transform to transform acquisition acquisition of theof the communications from a a contemporaneous interception to retrieval to retrieval from electronic from electronic 7
storage. We conclude that because the the spyware installed by by the the Wfe Wife intercepted the the electronic communication contemporaneously with transmission, copied it, it, and and routed routed the copy to to a a file file in in the the computer's computer s hard hard drive, drive, the electronic the electronic communications were were intercepted in violation of the Florida Act. We must next next determine determine whether whether improperly the improperly intercepted intercepted electronic electronic communications may be be excluded from from evidence under under the Act. the Act. The exclusionary The exclusionary provisions of the the Act Act are are found found in section in section 934.06, Florida Statutes (2003), which provides that "[w]henever [w]henever any wire or oral communication has been intercepted, no part of the contents of of such such communication and and no no evidence evidence derived derived therefrom therefrom may be may be received in evidence.... " Conspicuously absent from the the provisions of of this this statute is is any reference to electronic communications. The The federal courts, courts, which which interpreted an an identical statute contained in the Federal Wiretap Act, have held that because provision is not made for exclusion of intercepted electronic communications, Congress intended that such communications not be excluded under the Federal Wiretap Act. See Steiger. We agree with with this reasoning this reasoning and conclude and conclude that the intercepted that the electronic intercepted electronic communications in the instant case are not excludable under the Act. But But this this does not not end the inquiry. Although not specifically excludable under the Act, it it is is illegal and punishable as as a crime under the the Act Act to to intercept electronic electronic communications. 934.03, Fla. Stat. (2003). The trial court court found found that that the electronic the electronic communications communications were illegally were illegally intercepted in violation of of the Act Act and and ordered that that they they not not be admitted be admitted in evidence. in evidence. Generally, the admission of evidence is a matter within the the sound discretion of of the the trial trial court. See Stewart && Stevenson Servs., Inc. Inc. v. v. Westchester Fire Fire Ins. Ins. Co., Co., 804 804 So. So. 2d 2d 8
584, 587 (Fla. 5th DCA 2002); Forester v. Norman Roger Jewell & Brooks Int'l, Int l, Inc., 610 So. 2d 1369, 1372 (Fla. 1st DCA 1992) ( [T]he ("[T]he admission of evidence is is within the the sound judicial discretion of of the the trial trial judge, judge, whose whose decision decision in such in such regard regard must be must be viewed in the context of the entire trial.") trial. ) (citation omitted); see also Globe v. v. State, 877 So. 2d 663, 672 (Fla. 2004) ('"A ( A trial judge's judge s ruling on on the the admissibility of of evidence will will not be disturbed absent an abuse of of discretion."') discretion. ) (quoting Blanco v. v. State, 452 452 So. So. 2d 2d 520 (Fla. 1984), cert. denied, 469 U.S. 1181 (1985)); Shearon v. Sullivan, 821 So. 2d 1222, 1225 (Fla. 1st DCA 2002) ("The ( The standard of review of a trial court's court s exclusion of of evidence is abuse of discretion") discretion ) (citation omitted). Because the the evidence was was illegally obtained, we conclude that the trial court did not abuse its discretion in refusing to admit it. See Daniels v. State, 381 So. 2d 707 (Fla. 1st DCA 1979), afd, aff d, 389 389 So. So. 2d 2d 631 631 (1980); Horn v. State, 298 So. 2d 194 (Fla. 1st DCA 1974), cert. denied, 308 So. 2d 117 (Fla. 1975). We affirm the orders and the final judgment under review in the instant case. AFFIRMED. SHARP, W. and MONACO, JJ., concur. 9