The Do’s and Dont’s of “Spying” On Your Spouse During A Divorce Proceeding

The Do’s and Dont’s of “Spying” On Your Spouse During A Divorce Proceeding

Divorce can be a stressful ordeal for many couples. It can be even more stressful when the parties continue to live in the same household during their divorce proceedings. In White v. White, while the couple’s divorce was pending, the husband continued to live in the sunroom of the marital home. All family members had access to this room as it was where the family computer and home entertainment center was located. After discovering evidence of her husband’s infidelity, the wife hired a private investigator to retrieve her husband’s stored e-mails to his girlfriend from the family computer hard drive. The court ruled that this access was not unauthorized and held that

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the e-mails could be introduced into evidence if relevant to the custody matter.

In White, the parties got married in 1980 and had three children. The husband filed for divorce in October 1999 but continued to live in the marital home. During this time, the wife discovered a letter from her husband to his girlfriend, which led her to question his fidelity during the marriage. She hired a private investigator and without using a password, the investigator copied the husband’s files, including e-mails sent between the husband and girlfriend, from the family computer’s hard drive.

The husband incorrectly assumed that his e-mail could not be read without his password. The wife planned to use these e-mails in their custody battle. Based on this, the husband sought to suppress the evidence by making two claims against her:

(1) that such retrieval was an unlawful access of stored electronic information in violation of the New Jersey Wiretap Act, N.J.S.A. 2A:156A-27(a); and

(2) that it violated his common law right to privacy under the tort of intrusion on seclusion.

The court began by explaining the technical workings of America Online Service [“AOL”]. Simply put, an AOL user can voluntarily choose to save e-mails and attachments on his computer’s hard drive. Here, the husband—although he did not realize—was saving his e-mails on the hard drive of the family computer. Since he did not create a password to protect those e-mails, any person with access to the computer could view those documents.

(1) The New Jersey Wiretap Act Claim: N.J.S.A. 2A:156A-27(a) provides:

“A person is guilty of a crime of the fourth degree if he (1) knowingly accesses without authorization a facility through which an electronic communication service is provided or exceeds an authorization to access that facility, and (2) thereby obtains, alters, or prevents authorized access to a wire or electronic communication while the communication is in electronic storage.”

To put this claim into context, the court explained how e-mail communication works. Simply put, a sender sends an e-mail to a recipient; the message is received by the intended recipient, and then is copied into “post-transmission storage.

The Act only protects electronic communications that are in the course of transmission, not e-mails retrieved by the recipient and then placed in post-transmission storage. Here, the e-mail on the hard drive of the family computer were in post-transmission storage and thus not protected under the Act.

Also, the court also found that the wife did not access the e-mails “without authorization” because she had authority to use the computer and she did not use her husband’s password or code without authorization. Instead, the wife accessed the information by roaming in and out of different directories on the hard drive.

Finally, the wife’s action did not constitute an “intercept” under the statute because electronic communications cannot be intercepted when in electronic storage. Here, the e-mails were in post-transmission storage and thus, not intercepted.

(2) Invasion of Privacy Claim: The husband also alleged that by accessing his e-mail, his wife committed the tort of intrusion on seclusion.” For a violation of this tort, the intrusion must be “highly offensive to a reasonable person.”

The court focused on the location of the computer and found that the husband had no reasonable expectation of privacy because the entire family had access to and frequently used the computer and the room where it was located. The court also held that a wife searching for evidence of her husband’s infidelity is not a “highly intrusive” activity as it is not an uncommon occurrence. Under these circumstances, the court held that the wife’s access of the post-transmission stored e-mails did not violate the New Jersey Wiretap Act or intrude on her husband’s common law right to seclusion. Thus, the husband’s motion to suppress the e-mails was denied.


A.L. received her B.A. from Cornell University in 2009. She will receive her J.D. from Seton Hall University School of Law in 2012.

Comments (11):

  1. Good work on the subject. The variables in email services could create situations where this case will not apply, but I vote for the offended wife anyway. (as if voting mattered in such a case. Ed

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