O'Brien v. O'Brien - 899 So. 2d 1133 (Fla. Dist. Ct. App. 2005)

Rule:

The term "intercept" is defined by the Security of Communications Act as the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. Fla. Stat. ch. 934.02(3) (2003).

Facts:

The wife secretly installed a spyware program on the husband's computer. It was undisputed that the husband engaged in private on-line chats with another woman. The husband received a permanent injunction to prevent the wife's disclosure of the communications and to prevent her from engaging in that activity in the future. The trial court precluded introduction of the communications into evidence in the divorce proceeding. The wife argued that the electronic communications were retrieved from storage and, therefore, were not "intercepted communications" as defined by the Security of Communications Act.

Issue:

Were the electronic communications in question intercepted in violation of the Security of Communications Act? 

Answer:

Yes.

Conclusion:

The appellate court held the clear intent of Fla. Stat. ch. 934.03 (2003) was to make it illegal for a person to intercept wire, oral, or electronic communications. The communications were "electronic communications" which were intercepted contemporaneously with transmission. Thus, the electronic communications were intercepted in violation of the Act. While the intercepted electronic communications were not excludable under the Act, because the evidence was illegally obtained, the trial court did not abuse its discretion in refusing to admit it.