Early in 2005, a Florida intermediate appellate court ruled that a trial court adjudicating a divorce proceeding had properly excluded evidence that the wife obtained by installing a spyware program on the husband’s computer. The court held that the evidence was an intercepted electronic communication that violated a Florida statute modeled after the Federal Wiretap Act. The Florida court ruled that exclusion fell properly within the discretion of the trial court, despite the fact that the relevant Florida statute did not contain an exclusionary rule for intercepted electronic communications. This Article provides a short overview of the federal and state prohibitions on intercepting electronic communications before examining the Florida court’s analysis of how the spyware violated state law. The Article will also examine the scope of the court’s holding and whether information obtained from spyware could ever be admissible in court.
Suing Based on Spyware? Admissibility of Evidence Obtained from Spyware in Violation of Federal and State Wiretap Laws: O'Brien v. O'Brien as a Paradigmatic Case,
3 Shidler J. L. Com. & Tech.
Available at: https://digitalcommons.law.uw.edu/wjlta/vol3/iss3/2