Secretly Recording A Spouse Has A Price: $120,000.00

An article from Ars Technica discusses a woman who secretly put a recording device in a teddy bear to prove allegations that her estranged spouse was mistreating their daughter.  Not only did the family law court rule that the recordings were inadmissible, but the husband (“Duke”) sued the wife (“Dianna”) in federal court for, among other things, violation of the federal Wiretap Act.  From the article:

When Duke filed the federal lawsuit against Dianna in 2009, he also rounded up five other plaintiffs whose conversations had been recorded by the bear. One plaintiff, a cousin of Duke’s, at one point had the bear in his van for several days after it was left there accidentally; the cousin, going through his own divorce at the time, was upset that his conversations had been recorded and eventually distributed to people involved with Duke and Dianna’s custody case.

Another of the plaintiffs was a social worker who monitored “supervised visits” of children and who had driven the daughter between her parents’ houses. The social worker was already unhappy about being involved with the case because Dianna had once tried to “hire someone to follow her outside of visits,” but she elected to stay on because the daughter was making “significant progress” during her visits with Duke. Finding out that many of her own conversations had been recorded affected the social worker professionally, as she “stopped taking private cases due to the invasions of privacy caused by this incident.”

(The bear also impacted the daughter’s life directly, as the daughter left her daycare after the operators learned that the bear had been “bugging” the site.)

In total, then, the case was brought by Duke and five other plaintiffs, all of whom alleged Wiretap Act violations against Dianna and her father. Defense lawyers argued that Dianna could give “vicarious consent” for recording on behalf of her daughter, which would give the recordings at least the consent of one party. But when federal magistrate judge F.A. Gosset III ruled on the case three weeks ago, he pointed out that this was immaterial; the bear had “recorded many oral communications made by each of the plaintiffs” and to which the daughter was not a party. Under federal law, this amounted to a wiretap, and one which the defendants had intentionally tried to use.

The Wiretap Act allows people to file civil lawsuits and to recover either actual damages or statutory damages of $10,000. In this case, the judge hit Dianna with a $10,000 damage award—one payable to each of the six defendants. Her father Sam received the same penalty, for a total payout of $120,000. No punitive damages were awarded, nor was anything given to the plaintiffs for invasion of privacy or mental suffering.

In his ruling, the judge noted that the Wiretap Act has a strict standard which prohibits all wiretapping—even that of a parent looking to hear conversations with her child—unless specifically exempted by the law.

Technology law attorney Evan Brown called the case a tough decision, as “a parent fearing for the safety of his or her child might have strong reasons to resort to eavesdropping to protect the child.” Even the judge seemed to agree that there might be some merit to this argument, but he noted that it was for Congress to determine the law, and that the existing law here was clear.