Secret monitoring of PC use is illegal, appeals court rules

[Dragonlady8]

Debate of the Week: Yes / No/ Maybe under certain circumstances?


http://www.orlandosentinel.com/business/custom/technology/orl-asecspyware26022605feb26,0,2135222.story?coll=orl-home-headlines

Secret monitoring of PC use is illegal, appeals court rules
By Anthony Colarossi
Sentinel Staff Writer
February 26, 2005

Beverly Ann O'Brien suspected her husband was playing more than dominoes when he squirreled himself away on their computer long into the night.

So O'Brien installed surveillance software on the family computer in Orlando, capturing and storing online chats between her husband and another woman as they supposedly played the game on Yahoo.com.

It became a cyberspace version of throwing open the door to a seedy motel hoping to photograph a husband in bed with his lover.

But that decision to secretly record her husband's every move online is having wide-ranging -- and unexpected -- effects, now that an appeals court has issued an unprecedented ruling in Florida barring O'Brien from using the evidence she collected in hopes of gaining full custody of the couple's two children.

The ruling, from 5th District Court of Appeal, means O'Brien -- and presumably anyone else using this kind of software without the other computer users' knowledge -- could be breaking the law.

It's a decision that has some wondering whether it might now apply to employers or parents using the same popular SpectorSoft software -- often called spyware -- to monitor workers or children.

Basically, the Circuit Court in Orange and appeals court in Daytona Beach said the computer-screen "snapshots" saved on the hard drive amounted to illegal electronic interceptions, just like illegal wiretaps of phones.

Computer programs like the one O'Brien used capture what is on the computer screen every few minutes, creating images that can be checked later to see exactly what someone was doing.

Ryan Thomas Truskoski of Orlando, who represents O'Brien, asked the appellate court Wednesday for a rehearing, because the current ruling may affect so many others.

"It will severely restrict family life -- that is spouse to spouse and parent to child," Truskoski said. "The courts have no business legislating this activity in the sanctity of the home."

Truskoski and others ask: If a wife cannot secretly monitor her husband's suspected online infidelities by tapping certain files stored on the computer, then wouldn't a parent also be prevented from covertly looking in on a child's Internet activity?

In his motion for a rehearing, Truskoski also argues the decision has "dealt a severe blow to employers' legitimate concerns in monitoring employees for various inappropriate behavior." Generally, employers can monitor workers' use of computers, as long as they notify them ahead of time.

'I was shocked'

Beverly Ann O'Brien, who lost primary custody of her two children in the 2003 divorce and now lives in Tennessee, said if the courts had allowed her ex-husband's online communications into the divorce case, she would have her children today.

"I was shocked," she said of the chat conversations. "But the part that just appalled me was he was doing it with my child in the room. That tore me up."

Though the parties cannot discuss the details of the online conversations because of the rulings, Beverly Ann O'Brien added, "If this decision was overturned, there's no way a judge would give custody to this man."

But the court rulings determined that O'Brien illegally obtained her ex-husband James Kevin O'Brien's online chats and violated his privacy rights.

"To use Spector [software] to gather this information in this way is a felony," said James O'Brien's lawyer David F. Allen.

SpectorSoft Corp., based in Vero Beach, has rapidly grown into an industry leader in Internet monitoring and surveillance, selling hundreds of thousands of copies of its software. The ruling has SpectorSoft's executives scratching their heads and wishing the decision were not so open-ended.

"More questions have been posed by this ruling than have been answered," said SpectorSoft President Doug Fowler.

If the decision somehow restricts or outlaws monitoring online activities of children by parents and workers by employers, Fowler said, the ruling is "seriously mistaken."

Unforeseen consequences

But the attorneys handling the O'Briens' divorce view the decision as possibly having the broader implications Fowler fears.

"This is going to be the current state of law in Florida until another court of appeals disagrees," Truskoski said. "The opinion has several unanticipated consequences. The court did not leave any room for exceptions."

Fowler also noticed the court's decision lacks exceptions and insisted the software was conceived as a way to protect children and assist employers, not help spouses snoop on each other.

"They [customers] are using it to find out the truth," he said.

At the same time, glowing testimonials posted on SpectorSoft's Web site tell stories of how spouses caught their significant others cheating by using the software.

"My first use of Spector revealed her boyfriend and what she really thought of me," a Cleveland man wrote, referring to his wife of nine years. "Spector will save me thousands of dollars in negotiating my upcoming divorce or dissolution."

Might be a felony

Allen, James O'Brien's attorney, agreed that the decision in the divorce case could have larger ramifications in Florida.

Although the O'Briens no longer live in Florida -- James lives in suburban Atlanta with the kids, and Beverly Ann lives within driving distance in Tennessee -- Allen said their case can teach lessons about the use of the powerful technology.

"If you're doing it without warning anybody, you might be committing a felony, and you might not even know it," Allen said. "The thing that makes it a crime is if there's no notice."

Allen said his client isn't considering pursuing a criminal case against his ex-wife.

But Allen added that the crime might not ever be discovered unless someone tries to use the information in court.

"You can dump your spouse and never use any of this information," Allen said. "Her [Beverly Ann O'Brien's] mistake was using it in a court proceeding."

The couple lived in Orlando about four years before their divorce in 2003. James worked for Delta, and Beverly Ann was a stay-at-home mom and a teacher's aide before the marriage dissolved.

The judge in their divorce case determined that both parents were capable of providing good care for their children, but James was granted primary custody in part because the court thought he was planning to stay in Central Florida.

Beverly Ann had decided to move back with her parents in Tennessee and pursue a teaching career. This week, Beverly Ann said she realized there was going to be a battle for the custody of her kids, and she thought the software might help her case.

"Same situation, yes, I would do it again," she said.

Illegal interception

The Daytona Beach appellate court's decision was unique in its interpretation of intercepted information.

The SpectorSoft program can be installed and hidden on a computer and then accessed by just one user without other users knowing. The software copies images and text that appear on the computer's screen and then stores the data.

In the O'Brien case, the courts determined that the software's instantaneous copying of the screen images amounted to an "interception" of the data.

Traditionally, the courts have interpreted illegal interceptions to involve phone lines or cable lines that were unknowingly tapped. But they've also found the retrieval of data stored on a computer to be legal and admissible in court.

In the O'Brien decision, the appellate court also noted that state law is designed "to protect every person's right to privacy" and prevent an intrusion "into their private conversations and communications."

Predictably, Fowler, SpectorSoft's president, differs with the court's interpretation of intercepted data in this case.

He views the software as "a surveillance camera pointed at the PC screen."

"We make it easier for people to get hold of this information, but we didn't wiretap it over a line," Fowler said.

'Potential for abuse'

SpectorSoft's products clearly ask computer users installing the software whether they agree to advise other users about the monitoring program. Users must answer yes to the question and confirm that they own the computer to install the program, Fowler said.

But Fowler acknowledges that signing off on such an agreement doesn't mean the customer will actually tell other users.

"We don't want [customers] using it for illegitimate purposes," he said. "But I'm not going to deny that our product has the potential for abuse. If people choose to do this and not inform [other users], the onus is on them."

[Chales]

If you own the computer, then I think you should be able to secretly watch it all you like. In this case, it would seem to me like both husband and wife own the computer, so she did nothing wrong.

[pyrocasto]

I dont think that should be allowed but I have mixed feelings. I want to know what my kids would be looking at, but I dont want my parents to know what I would be looking at.

[Dragonlady8]

Chales, But should the wife been able to use her "spying" for legal purposes?
Or for that matter should you be fired by your employer for using your computer for non-work related use found out by the spyware?

pyrocasto, for arguments sake...let's take Minors out of this topic.
- For Minors ( and others) who are still living under Parental Dictatorship

[pyrocasto]

I dont know my view then. I would like to know if my wife is cheating or not, but I would also like to trust her enough to not have to spy. How could you keep a suprise from them if they are spying on you? I think it should be outlawed, but a simple "Are you cheating on me" lie detector test should be fine.

[Chales]

"But should the wife been able to use her "spying" for legal purposes?"

Yes. It's her computer, and her "spycam". She can do whatever she wants with it.


"Or for that matter should you be fired by your employer for using your computer for non-work related use found out by the spyware?"

I've never been in a work environment where I use the computer day in and day out. But if I were an employer, I don't think I would care too much if my employees were using the computer a little bit for non-work purposes... if they were doing it a lot, I would think of it as my fault for not giving them enough to do.