INTERNET PROVIDES A SLIPPERY SLOPE OF POSSIBLE STATE AND FEDERAL LAW VIOLATIONS IN DIVORCE AND CUSTODY CASES

All divorce lawyers are seeing a dramatic increase in the role of the Internet in their cases.  People are communicating via email, connecting on social dating sites, using GPS devices and intercepting communications by their spouse on their computer.  People are also impersonating other people on the Internet.  The Mississippi Legislature has just passed a law prohibiting impersonating someone else on the Internet.

There are at least three Federal laws which can be brought into play with the use of the Internet.

The first major Federal statute to address electronic privacy issues is the Wiretap Act.  This act dates from the late 1960s, and it is primarily aimed at telephone wiretapping.  It was amended in 1986 to add provisions applying to transmissions of electronic data during an era in which most such transmissions were over telephone lines via dial-up connections.

The main operative provision of the Wiretap Act is 18 U.S.C. § 2511.

The 1986 amendments which added the electronic communications provisions to the Wiretap Act also added the Stored Communications Act (SCA), which applies specifically when stored communications are improperly accessed.

The relationship between the SCA and the Wiretap Act can be illustrated with an analogy to the game of football.  Between the moment when the quarterback throws a pass and the moment when the receiver catches it, the ball is in the air and is subject to the rules governing interceptions.  Before the quarterback throws the ball, or after the receiver catches it, the ball is not in the air, and it is subject to the rules governing fumbles.  Under Federal law, the Wiretap Act is analogous to the rules governing interceptions; the SCA is analogous to the rules governing fumbles.  The basic operative provision of the SCA is 18 U.S.C. § 2701(a).

A final relevant federal statute is the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.  The statute is violated when someone accesses a “protected computer,” obtains “information,” and either lacks access to the computer or exceeds the scope of any authorization granted.