A husband embroiled in an acrimonious divorce brought suit against his wife claiming a violation of the Electronic Surveillance Act by surreptitiously placing an auto-forwarding “rule” on his e-mail accounts that automatically forwarded the messages on his e-mail to her. He also alleges that the wife’s divorce attorney violated the Act by “disclosing” the intercepted emails in response to his discovery request. The district court dismissed the case on the pleadings. Reversing, in part, the U.S. Seventh Circuit noted as follows:

The Wiretap Act makes it unlawful to “intentionally intercept or endeavor to intercept any wire, oral, or electronic communication.” The Act also prohibits the intentional “disclosure” or “use” of the contents of an unlawfully intercepted electronic communication. “The parties’ briefs are largely devoted to a debate about whether the Wiretap Act requires a ‘contemporaneous’ interception of an electronic communication — that is, an interception that occurs during transmission rather than after the electronic message has ‘come to rest on a computer system.’ The Seventh Circuit noted the “trend” towards requiring a contemporaneous interception, but “do not need to take a position today. Even if the Wiretap Act covers only contemporaneous interceptions, Barry has stated a Wiretap Act claim against Paula, and dismissal of the claim against her was error.”

First, the district court assumed that the time the wife received the forwarded emails was the moment of interception, but “we do not know how Paula’s auto-forwarding rule worked. For example, we cannot tell if a server immediately copied Barry’s emails — at which point the interception would be complete — even though Paula’s email client may not have received them until later.

“Second, the judge mistakenly conflated the emails Barry received and those he sent…. Putting aside the general problem of determining precisely when an interception occurs, for the emails Barry received from the other women, it seems reasonable to compare the time Barry received the message and the time the email was successfully forwarded to Paula. But that logic doesn’t apply to emails Barry sent to the other women. The time markings on those emails tell us nothing about when transmission of the emails was complete. To know that we would need to know when the intended recipients — the women Barry was corresponding with — actually received the emails.

“Finally, it’s highly unlikely that the exhibit attached to the complaint contains all the emails that were forwarded to Paula’s email addresses…. Barry alleges that Paula’s auto-forward rule was in place for as long as five years; it’s more likely that these few dozen emails are only a small fraction of a much larger volume.”

At the same time, the dismissal of the claims against the wife’s lawyer were affirmed: “The disclosure theory fails because Barry already knew the contents of the intercepted emails and indeed invited their disclosure by requesting them in discovery in the divorce action…. The use theory fails for a more prosaic reason: The complaint doesn’t identify any use Frank actually made of the emails. Rather, it alleges that Frank intended to use the emails to embarrass Barry during the divorce litigation — in cahoots with Paula and with the aim of extracting a favorable financial settlement. But the Wiretap Act does not prohibit inchoate intent.”

Judge Posner, concurring, agreed that “under the existing understanding of the Federal Wiretap Act Paula Epstein violated it if she searched her husband’s computer for evidence of adultery by him that she could use against him in divorce proceedings, without having obtained his consent to her accessing his computer” but wrote separately “to raise a question that neither party addresses and is therefore not before us on this appeal — whether the Act should be thought applicable to such an invasion of privacy…. 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.”

Epstein v. Epstein, No.15-2076, 2016 WL 7232145 (7th Cir. Dec. 14, 2016).