(973) 403-9200
2006
The technology revolution has mainstreamed the presence of computers throughout our society. Computers are used for entertainment, managing finances and communication, having become a standard component of daily life. When parties decide to divorce, the information stored within said computers is often relevant to one or more issues in the parties’ case. The law surrounding technology and computers is in the early stages of development. The regulation of accessing electronically stored information on a computer in the context of matrimonial litigation remains unsettled despite the fact that such information may be germane to a divorce proceeding. While we are all familiar with the holding of White v. White,[i] recent legislation may change the way matrimonial practitioners address these issues.
Legislative History of Monitoring Electronics and Communication
An analysis of the law governing the access and retrieval of electronically stored information begins with The New Jersey Wiretapping and Electronic Surveillance Control Act (“New Jersey Wiretap Act”).[ii] The New Jersey Wiretap Act, enacted in 1968, mirrors the Federal Wiretap Act (“Federal Act”) which Congress implemented earlier the same year. A brief examination of the development of both the Federal and State laws provides a necessary understanding of their scope, purpose and relationship to the access of electronically stored information on computers.
In enacting Title III (commonly known as the “Wiretap Act”) of the Omnibus Crime Control and Safe Streets Acts of 1968[iii], Congress responded to evolving legal principles of privacy and emerging technologies by overhauling existing federal law for the surveillance and interception of conversations.[iv] Both the Wiretap Act and New Jersey Wiretap Act recognized a privacy right in communications by prohibiting the recording of conversations either in the form of wiretaps on phones or hidden microphones. By 1986, the technology and forms of surveillance sought to be addressed by Congress eighteen years earlier extended to concepts not contemplated at the time of its passage. Substantial advances in technology allowed people to interact through mediums beyond the telephonic (wired) and face-to-face means to which the existing law was limited. The advent of wireless phones, radio transmissions, fax machines, as well as the genesis of microchip technology (and its corresponding impact on computers) all exceeded the reach of the law.[v] Consequently, Congress modernized the Wiretap Act with the passage of the 1986 Electronic Communications Privacy Act (“ECPA”).[vi] New Jersey achieved uniformity with these Federal revisions in 1993 by amending the New Jersey Wiretap Act with provisions identical to the ECPA.[vii]
In addition to extending the scope of the law to include previously unaddressed technology, the ECPA amendments organized the communications it regulated into distinct classes. As amended, the Wiretap Act is divided into three Titles. Title I (previously the original Title III of the Wiretap Act) covers the interception of conversations; Title II regulates access to email and other forms of electronic communications, while Title III governs tracing devices such as pen registers and “Caller ID”.[viii]
Issues in family law most commonly implicate Titles I and II, and arise in the context of one spouse’s access to the private communications of the other.[ix] There are important differences between Title I and Title II that result in differing treatment of the communications they govern. On the Federal and State level, judicial treatment of oral and wire communications intercepted under Title I differ from email and electronically stored information accessed under Title II. To understand the role of Title I and II communications in family law, it is necessary to briefly examine their disparate treatment by the ECPA.
Although they share commonality in applying to private and government action (as well as providing for damages), oral and wire conversations under Title I are distinguishable from electronic communications under Title II in several ways. First, Title I communications have been in existence and regulated for a considerably longer time than those addressed by Title II. The body of law concerning wiretaps and privacy is familiar to courts, as opposed to the relatively new concept of emails and online interaction. Courts and legislatures continue to be confronted with various issues in which Title II issues arise, establishing rules to guide their adjudication. The most significant difference between Titles I and II is the application of the exclusionary rule. The exclusionary rule addresses the ability to bar the submission of evidence procured in violation of a law. Oral or wire communications intercepted in violation of Title I are subject to a strict interpretation of the exclusionary rule and are inadmissible.[x] In contrast, no such remedy exists as to electronically stored information accessed in violation of Title II. An intercepted phone call may thus be excluded from evidence under Federal and State law, while an email providing a verbatim transcript of the same communication can be admissible.
Development of the Law Concerning Electronically Stored Information
In White v. White, the only case on point, a New Jersey Court considered one spouse’s accessing the email of the other in matrimonial litigation. The trial Court held that a wife’s retrieval of her husband’s email correspondence with his girlfriend did not violate the New Jersey Wiretap Act because the form in which the emails existed at the time they were accessed was not within the scope of the statutory language. Additionally, the wife was an authorized user of the computer, making access in violation of the law a legal impossibility.
In White, both parties continued to reside in the marital home during the pendency of their divorce. The husband lived in the sunroom where the family computer was kept. All family members had access to the room, which contained the home entertainment center as well as the computer. After discovering evidence of the husband’s extramarital affair, the wife retrieved the emails and offered them as evidence during the divorce proceeding for consideration in deciding custody of the parties’ children.[xi] In ruling that the emails were admissible if relevant, the Court provided a legal framework for analyzing the access of electronically stored information under the New Jersey Wiretap Act.
In finding that the wife had not violated the New Jersey Wiretap Act, the Court focused on the nature and status of the various forms of email. After discussing the various forms in which electronic communications are stored in their course of delivery between sender and recipient[xii], the Court launched into an analysis of the emails accessed by the wife and concluded that her actions could not be found to be a violation of the statutory language.[xiii] In reaching its conclusion, the Court adopted the observed definition which strictly defined the forms in which an electronic communication must exist in order for it to be accessed in violation of the New Jersey Wiretap Act.
The Court next addressed the concept of authorization. The Court held that the specific circumstances under which the discovery and retrieval of the emails occurred could not be found to constitute an unauthorized access under the Statute. The Court noted that the wife had authority to use the computer despite the fact that she infrequently exercised the right. Furthermore, the Court determined that her authorization to use the computer was reinforced by the fact that the system or files accessed were not password protected.[xiv]
Although the White holding is important because it is precedential in the context of retrieving electronically stored information incident to divorce litigation in New Jersey, it is somewhat limited in its analysis and does not consider subsequently enacted legislation as detailed below. Despite engaging in an in depth analysis of the nature of electronic communications and the New Jersey Wiretap Act, the White Court failed to address the fact that emails (and other Title II communications) are generally not subject to an exclusionary rule.[xv] The Court’s decision also limited its ruling by finding that no violation of the Statue occurred, but did not discuss potential remedies in circumstances where a violation could be found. Thus, while significant, White is only the first step in analyzing the law on the subject.
It is also important to note the age of the White case and the progress made in legislation since then. White was decided in 2001, and despite being relevant authority in New Jersey, may be affected by recent legislation. Amendments to the Criminal Code and the Rules of Court regulating computer activity and electronic information will impact the adjudication of issues dealing with spousal access to email in matrimonial litigation. On April 14, 2003, the New Jersey Legislature enacted three statutes (N.J.S.A. § 2C:20-23[xvi], N.J.S.A. § 2C:20-25[xvii], and N.J.S.A. § 2C:20-31[xviii]) which will have a substantial impact on the issues addressed herein.
N.J.S.A. § 2C:20-23 provides definitions for computer criminal activity and the above related statutes. N.J.S.A. § 2C:20-31 generally governs the wrongful access and disclosure of information on a computer. Subsection (a) provides for third degree criminal liability for the purposeful accessing of a computer and disclosure of corresponding information data without (or in excess of) authorization. Subsection (b) makes it a crime in the second degree if such action concerns data which is legally protected (i.e., information protected by any law, Court order or Rule of Court). N.J.S.A. § 2C:20-25 seems to be very similar to N.J.S.A. § 2C:20-31, except that it defines the prohibited activity in more detail and appears to be directed toward computer hacking of large systems. It defines computer criminal activity, similarly makes it a third degree crime under subsection (a) to access computer information, and provides for varying penalties depending on the information accessed and damage caused.[xix] Violations under these two Statutes are separate crimes and can result in a conviction under both from a single act.[xx] Criminal liability thus exists for wrongful access under N.J.S.A. § 2C:20-25 as a distinct offense from access and disclosure under N.J.S.A. § 2C:20-31.
The amending of the Rules of Court to match those of the Federal Rules of Civil Procedure[xxi] is the latest example of the continuous development in the law governing electronic development. The applicable amendments to the Part IV Rules now include electronically stored information as discoverable material[xxii], and extend existing discovery rules to conform to this concept.[xxiii] While the influence of the amended Court Rules on matrimonial litigation may be indirect because of their intended focus on civil actions,[xxiv] the inclusion of the issue of electronically stored information at a Case Management Conference makes the issue a potential source of attention early in the divorce proceeding.
Obviously, these legislative actions significantly impact matrimonial litigation. Potential criminal liability for illegally accessing computers and disclosure of information has clear implications for spouses (and perhaps counsel) who are found to have engaged in a manner prohibited by statute.[xxv] Moreover, a determination that a party is guilty of such conduct can obviously result in adverse consequences in the ultimate disposition of their divorce proceedings.
An important consideration in analyzing the adjudication of issues dealing with electronically stored information and family law is the relationship between the recently enacted Statutes and existing State, Federal, and case law. Perhaps the most relevant factor is that of authorization, and the approach taken by a Court in determining whether electronically stored information was accessed illegally. Significantly, N.J.S.A. § 2C:20-23(q)[xxvi] articulates a more structured definition of “authorized access” than previously established under White.[xxvii] As a consequence, two standards for approaching the issue of authority to access electronically stored information can exist on a single set of facts. The analysis under the Federal and New Jersey Wiretap Act employed inWhite examines the circumstances (whether access was prohibited or the information password protected) in which access occurred, as opposed to an analysis of the same concept under the Criminal Code which provides a broader definition of authorization to enable it to be applicable to the wide spectrum of acts that occur beyond scenarios involving family members.
The act of wrongfully accessing and disclosing electronically stored information of a spouse implicates N.J.S.A. §2C:20-25 and N.J.S.A. § 2C:20-31, with potential additional liability under White and the New Jersey Wiretap Tap Act. The full impact of the recently enacted Criminal Code on spousal access of electronically stored information will not be fully understood until the question is considered within the context of matrimonial litigation.
Accessing Electronically Stored Information and Advocating for the Divorce Client
A primary point for an attorney to consider when advising a client to access computer information of their spouse is the manner by which such data is accessed. As articulated in White, only the New Jersey Wiretap Act contemplates certain forms of email.[xxviii] Specifically, emails in temporary storage folders on a computer that have not reached their recipient are of the type which may be accessed in violation of the Wiretap Statute. Messages read and saved are thus not within the scope of the New Jersey Wiretap Act. Only communications that are still in transmission can be illegally accessed. Identifying the difference in this regard can be critical. Accessing such records may nonetheless run afoul of the legislation enacted in 2003, even though such access may not violate the Wiretap Act (per White).
A spouse may retrieve, without consequence, an email message that has been read and saved to a computer’s hard drive under White because the transmission of the communication has been completed. However, exposure under the Statute may exist because acquiring the same information by alternative means may be illegal. Accessing such information is relatively easy and may be accomplished by people with little or no computer savvy. Advanced surveillance software and monitoring programs that can be installed on a computer to surreptitiously record communications concurrent with their transmission may constitute unlawful access even under the Wiretap Act.[xxix] Consequently, clients must be made aware of the potential penalties in employing more sophisticated methods of accessing their spouse’s electronic communications (or engaging in such conduct through a third party).
It is critically important to also recognize the corresponding potential criminal liability that ominously applies to such scenarios. Although distinctions can be drawn between forms of storage and access that may violate the New Jersey Wiretap Act, the same nuances do not apply to N.J.S.A. § 2C:20-25 and N.J.S.A. § 2C:20-31. The Criminal Code does not discern the state of transmission in which electronically stored information exists when accessed, nor does it indemnify the accessing party by differentiating means of access. Criminal computer activity is broadly defined and potentially violated by acts that may be found to not offend the New Jersey Wiretap Act.
Another significant concept is the recognition of the relationship between such accessed documents and the exclusionary rule. As previously noted, while accessing a spouse’s email may violate the law governing electronically stored information, there is no rule by which such information would be deemed inadmissible. Thus, electronic communications illegally accessed under White or the legislation enacted in 2003 may be admitted, although civil and criminal liability may attach for retrieving them.
As it relates to liability, the most important point of practice for attorneys advising a client in terms of accessing electronic information of a spouse is imparting an understanding and explanation of the concept of authorization. Both civil and criminal liability associated with retrieving information from a computer is predicated on a lack of authorization, or acting in excess of authorization.[xxx] An analysis of whether a party was an authorized user of a family computer appears to be fact-sensitive. In White, the trial judge considered the absence of (1) a prohibition from using the computer and (2) a password to protect the accessed information.[xxxi] It is important to note, however, that such an inquiry is case-specific and an unambiguous standard for finding authorization does not exist. The circumstances presented under White may be distinguishable from potential cases in which authorization to use and access the computer of a spouse may be found by a court to be less obvious. Attorneys should be mindful of scenarios where (1) a client does not routinely access or make use of a computer, (2) is accessing information that is password protected, (3) has been prohibited from using the computer, (4) is unable to access or make use of a computer because of its location in a locked or remote area, or (5) any other factor relevant to an analysis of authorization.[xxxii]
Thus, determining the authority of a client to use a family computer should be a threshold issue in assessing a case and devising a plan for discovery. While the existence of a password or other factor suggesting a lack of authority does not appear to be determinative on the ability to access electronically stored information on a family computer[xxxiii], matrimonial practitioners must proceed cautiously when information is protected by password. In addition to the previously discussed potential for civil and criminal liability under the New Jersey Wiretap Act and Criminal Code, the specific landscape of the case and the client’s good faith in accessing the computer information of the spouse should be considered. Although information contained on a family computer may be relevant or even helpful to divorce litigation, its use should be considered in light of the overall benefit to the case and potential for adverse consequences in a judge viewing production to be the result of bad faith or criminal actions.
Perhaps a thornier issue is that the potential exists for liability to attach to an attorney based upon the illegal accessing of a spouse’s computer information. Professional and ethical standards prohibit attorneys from advising clients to secure information of a spouse in a manner they know to be in violation of the law.[xxxiv] This consequence requires attorneys to not only be aware of what acts constitute illegal access of electronically stored information, but be able to competently evaluate the law under the circumstances of a case in order to avoid accountability. Please remember that N.J.S.A. 2C:20-25 governs the wrongful access of computers and N.J.S.A. § 2C:20-31 governs the wrongful access and disclosure of information on a computer. If counsel attempts to use electronic information he or she knows that the client has illegally obtained, is he or she “disclosing” same as contemplated by N.J.S.A. 2C:20-31? If the attorney counsels the client to unlawfully access a spouse’s computer, has counsel aided and abetted an offense committed by the client? If so, criminal liability may attach to the attorney as well.
Technology has integrated computers into the social fabric and made them a permanent fixture of modern life. The generational gap that once existed as the computer industry established itself has almost been erased, and basic skills for their use have become the norm. However, a gap has been created between the exponential growth in computer technology and the ability of the law to adjust. Social dependence on computers to communicate and manage daily life has resulted in their increased presence in matrimonial litigation. The absence of explicit rules governing the treatment of many issues implicated by computers requires attorneys to take a cautious approach in advising divorce clients. As the legislation and legal principles concerning technology develop, they will transcend into all areas of the law. In the interim, family law practitioners must have an awareness of all laws related to technology and computers and their impact on divorce law.
[i] White v. White, 344 N.J. Super. 211 (Ch. Div. 2001).
[ii] N.J. Stat. Ann. §§2A:156A-1 to -34
[iii] 18 U.S.C. § 2510-2522 (2000)
[iv] Richard C. Turkington, Protection for Invasions of Conversational and Communication Privacy by Electronic Surveillance in Family, Marriage, and Domestic Disputes Under Federal and State Wiretap and Communications Acts and the Common Law Privacy Intrusion Tort, 82 Neb. L. Rev 693, 700-704 (2004) (discussing enactment of the Federal Wiretap Tap Act as the Congressional response to the emergence of privacy law and protection of individual liberties by the Supreme Court).
[v] Id. at 703 (describing how advances in technology antiquated the law).
[vi] 18 U.S.C. § 2510-3127 (1994)
[vii] Cacciarelli v. Boniface, 325 N.J. Super. 133, 136 (1999).
[viii] Camille Calman, Note, Spy vs. Spouse: Regulating Surveillance Software on Shared Marital Computers, 105 Colum. L. Rev. 2097, 2106 (2005) (listing the division of communications among the three Titles).
[ix] Turkington, supra at 703.
[x] Turkington, supra at 704.
[xi] White, 344 N.J. Super. at 215, 217.
[xii] Id. at 219 (explaining the ways email can be stored and citing Fraser v. Nationwide Mutual Insurance Company, 135 F. Supp. 2d 623, 633-634 [E.D. Pa. 2001], to articulate that the transmission of emails is an “indirect” process that places messages in various “temporary” folders until they are read for the purpose of protecting their loss, which does not include the saving of the communication by the recipient after it has been read).
[xiii] Id. at 219-220 ((observing that N.J.S.A. §2A:156A-1(q), describes the form of storage for an email accessed in violation under the New Jersey Wiretap Act to be limited to a “temporary” type for “purpose of backup protection”, and that “the Act as not meant to extend to e-mail retrieved by the recipient and then stored.”)).
[xiv] Id. at 221.
[xv] Turkington, supra at 704.
[xvi] N.J. Stat. § 2C:20-23 (2006).
[xvii] N.J. Stat. § 2C:20-25 (2006).
[xviii] N.J. Stat. § 2C:20-31 (2006).
[xix] Specifically, N.J.S.A. § 2C:20-25(a) imposes third degree criminal liability for accessing “any data, data base, computer storage medium, computer program, computer software, computer equipment, computer, computer system or computer network”. The similar language and provision for third degree criminal liability under N.J.S.A. § 2C:20-31(a) is most applicable to an analysis of spousal access to email because the information is unlikely to be of a legally protected nature (thus subject to the stepped up liability as a second degree crime per N.J.S.A. § 2C:20-31(b)).
[xx] N.J.S.A. § 2C-20-25(h) states “…a conviction for a violation of any subsection of this section shall not merge with a conviction for a violation of any other subsection of this section or 10 of P.L. 1984, c. 184 (C. 2C:20-31), or for conspiring or attempting to violate any subsection of this section of section 10 P.L. 1984, c. 184 (C. 2C:20-31), and a separate sentence shall be imposed for each conviction.”
[xxi] Report of the Discovery Subcommittee on Proposed Rule Changes Regarding Electronically Stored Information (November 2005): New Jersey Legislature Judiciary Committee (Discovery Subcommittee Report).
[xxii] N.J. Ct. R.4:5B-2
[xxiii] For example, R.4:18-1 providing for the production of documents has been amended to allow for requests concerning the discovery of electronically stored information to specify the form of production.
[xxiv] The catalyst for the changes in the federal and corresponding New Jersey Rules was the Zubulake v. USB Warburg, LLC series of decisions from the Southern District Court of New York. These decisions [I through VI: “Zubulake I”, 217 F.R.D. 309 (S.D.N.Y. 2003), “Zubulake II”, 230 F.R.D. 290 (S.D.N.Y. May 13, 2003), “Zubulake III, 216 F.R.D. 280 (S.D.N.Y. 2003)”, “Zubulake IV”, 220 F.R.D. 212 (S.D.N.Y. 2003), “Zubulake V”, 229 F.R.D. 442 (S.D.N.Y. July 20, 2004), “Zubulake VI”, 231 F.R.D. 159 (S.D.N.Y. February 3, 2005)] were based on a shift in the policy of the treatment given to the non-disclosure and erasure of electronically stored information, as well as the ramifications for a party who engages in such actions during discovery. Thus, the amendments drafted to address these concepts are peripheral to matrimonial litigation because of the nature of discovery in a divorce action. Married couples have personal knowledge of one another in contrast to parties in civil litigation who are attempting to discover information pertinent to a specific claim. The relationship between the litigants is the distinguishing factor in considering the applicability of the amended rules to family law.
[xxv] The concept of liability for disclosure is indicative of the development of the law of electronically stored information and exemplifies the process by which such change occurs. As noted by the trial judge in White, “Interestingly, the language of the Act [New Jersey Act] refers to ‘access’ rather than ‘disclosure’ or ‘use’, thus one court has held that a person ‘can disclose or use with impunity the contents of an electronic communication unlawfully obtained from electronic storage’, Wesley College v. Pitts, 974 F.Supp. 375, 389 (D.Del.1997). White, 344 N.J. Super. at 221.
[xxvi] N.J. Stat. § 2C:20-23(q) is the definitional statue for the computer related crimes additional to the Criminal Code and provides that authorization under N.J.S.A. § 2C:20-31 and N.J.S.A. § 2C:20-31 “means permission, authority or consent given by a person who possesses lawful authority to grant such permission, authority or consent to another person to access, operate, use, obtain, take, copy, alter, damage or destroy a computer, computer network, computer system, computer equipment, computer software, computer program, computer storage medium, or data. An actor has authorization if a reasonable person would believe that act was authorized.”
[xxvii] The issue of authorization of the electronically accessed data by the Family Part judge in White was a more conceptual approach (that focused on the absence of prohibition) in contrast to the one utilized in criminal law under which authority to access is based on “lawful authority” and the ability to consent (in the context of protecting search and seizure rights). The White Court simply considered the wife’s authority to access the family computer in the context of whether there was an explicit prohibition against her use or password which would denote the intent of husband to restrict her access. White at 244.
[xxviii] White, 344 N.J. Super. at 220 (only emails in transitory storage are potentially violated under the New Jersey Wiretap Act because once an email is read and placed in a post-transmission storage folder, it ceases to be in the temporary form contemplated by the law).
[xxix] Such software can be illegally accessed in more than one way. If the program is designed to copy a communication within the folder it is stored by the computer while it awaits retrieval by the recipient, it violates access of information as previously discussed under Title II because the communication was in temporary storage. In the event the communication is copied by the program when it is not in temporary storage (but still not yet retrieved by the recipient), it can violate Title I (which contains a provision to include electronic communication that have not been stored) as an intercepted communication. See Calman,supra at 2098, 2101.
[xxx] N.J.S.A. § 2C:20-31(a) and (b) as well as N.J.S.A. § 2C:20-25 base liability on a “person purposely or knowingly and without authorization, or in excess of authorization…”
[xxxi] White, 344 N.J. Super. at 221.
[xxxii] The White Court did not define or limit its analysis of authorization. The absence of a prohibition and password were merely the two considerations used by the judge to illustrate that the access was not unauthorized. The factors for an inquiry in terms of authorization in the context of matrimonial litigation underWhite appear to be based on a concept of reasonableness and implied consent.
[xxxiii] There is no known reported decision that has found the accessing of a spouse’s email to be unauthorized. Thus, there is not an observable threshold for what circumstances would constitute unauthorized access (White only provides guidance as to why the actions in the specific case do not offend the limits of authorization, without analyzing other factors that may impact such an inquiry or establish a general rule). Even in the event that such a precedent is established, the information is potentially accessible through discovery.
[xxxiv] N.J.R.P.C. 1.2 (d) states in pertinent part “ A lawyer shall not counsel or assist a client in conduct that the lawyer knows to be illegal, criminal, or fraudulent…”