Spector Spyware Violates State and Federal Wiretap Laws

On February 11, 2005, Florida’s 5th District Court of Appeals upheld a trial court’s decision to suppress captured real time communications in O’Brien v. O’Brien, Case Number 5D03-3484, a dissolution of marriage case. The use of Spector software or other spyware to monitor real time chats and/or communications on a computer without all parties’ consent constitutes an illegal intercept under Florida’s Security of Communications Act (Chapter 934) as well as the Federal Wiretap Act found at 18 U.S.C. § 2501, et seq., as amended by Title I of the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, Title I, 100 Stat. 1848 (1986).

Some claim the decision spells gloom and doom for employers who engage in these kinds of monitoring, but there are specific exemptions contained within the Stored Electronic Communications Act and the Electronic Communications Privacy Act (ECPA) that would allow them to monitor computer communications for the protection of their systems and property. Additionally, well drafted terms of use policies for internal operations and well drafted privacy policies for web use would garner the requisite consent in order to legally monitor these communications in real time. Once the communications are stored, the review of that electronic data is no longer covered under 934 or the Federal Wiretap Act.

Read the O’Brien decision here in pdf format.