Checking Your Significant Other’s Email For Evidence of Cheating May Violate Federal Law

As if divorce cases weren’t bizarre and petty enough, an “innovative” divorce litigant has figured out yet another way to torture his soon-to-be former spouse.  According to an article in the ABA Journal:

“Paula Epstein, the defendant in the case, was sued by her husband, Barry Jay Epstein, the Chicago Daily Law Bulletin reports. The couple are in the process of divorcing, according to the opinion (PDF), and Paula accused Barry of “serial infidelity.” His attorney asked for proof, and her attorney produced email correspondence between Barry and several other women. According to the opinion, Barry did not know that Paula had access to his emails until they showed up in discovery. He alleges that she must have arranged for his emails to be automatically forwarded to her.”

Although the federal district court dismissed Barry’s complaint, the Seventh Circuit reversed the district court’s decision in part and reinstated the claim against Paula.  To its credit, the Seventh Circuit seems a bit disgusted with itself for essentially choosing form over function as it pertains to enforcing the Wiretap Act, with Judge Posner stating in his concuring opinion:

“Her husband’s suit under the Federal Wiretap Act is more than a pure waste of judicial resources: It is a suit seeking a reward for concealing criminal activity.  Had the issue been raised in the litigation, I would vote to interpret the Act as being inapplicable to—and therefore failing to create a remedy for—wiretaps intended, and reasonably likely, to obtain evidence of crime, as in this case, in which the plaintiff invoked the Act in an effort to hide evidence of his adultery from his wife.”

However, the fact stands that the case will move forward against Paula back in  district court.  Regardless of the outcome, the tactic seems to have worked in terms of creating leverage for Barry in the divorce case, as Paula will have to consider potential liability in the federal case as it pertains to the remaining issues in the underling divorce.  I’m sure that is what Congress intended when it enacted the Wiretap Act.

As it stands now, if you are going to snoop on your no good cheating husband, you’d better bone up on your knowledge of the Wiretap Act.  Otherwise, you might find yourself being sued in federal court in addition to being embroiled in a messy divorce.

Credit to today’s ISBA E-Clips for pointing this story out to me.  Further credit to ABA Journal and Stephanie Francis Ward for authoring the article.