eBlaster, Wiretapping and the Prenup

Before we get to the legal issues, I need to outline the facts that led to the opinion we’re concerned with.  It starts in the summer of 2003, when Crystal Goan, who had finished her first year of law school, went to work at the Klumb Lumber Company in Greeneville, Tennessee. Klumb v. Goan, __ F.Supp.2d __, 2012 WL 2958228 (U.S. District Court for the Eastern District of Tennessee 2012).

There, she met Roy Klumb, whose grandfather had founded the company and whose father was then running it.  Klumb v. Goan, supra. Roy and Crystal began dating in the summer of 2004 and the relationship continued during her final year at law school.  Klumb v. Goan, supra.

After Crystal graduated, she returned to Greeneville to work in a law firm.  Klumb v. Goan, supra.  She and Roy continued to date and were engaged in December of 2005. Klumb v. Goan, supra.  He discussed a prenuptial agreement with Crystal, and agreed to let her draft it; five days before their marriage, Crystal brought two copies of the prenuptial agreement to Roy’s office.  Klumb v. Goan, supra. He read the first one carefully, found it satisfactory, signed it and kept it. Klumb v. Goan, supra.  Roy also signed the second copy, which Crystal took, without reading it, assuming the two were identical.  Klumb v. Goan, supra.

Some time before they married, Crystal bought “spyware called eBlaster” from Spectorsoft. Klumb v. Goan, supra.  The opinion says eBlaster can record keystrokes typed on a computer, keep track of “all websites visited and all applications used” on the computer and can “capture screenshots of instant messages and cached webpages.”  Klumb v. Goan, supra.  It can compile “a report of this information at selected time intervals and send that report to a designated third party email address”, as well as forwarding “copies of incoming email accessed on that computer to the third party email address.” Klumb v. Goan, supra.  It can also forward instant messages and cannot be detected by anti-virus software unless the user of the software knows the “hot key” combination needed to access eBlaster’s control panel. Klumb v. Goan, supra.   

After they married, Crystal “surreptitiously installed eBlaster on June 12, 2006, at 8:29 pm on a computer” the Klumb Lumber Company owned that was known as “Roy's sales desk” computer in the company office.  Klumb v. Goan, supra. It was the computer he commonly used.  Klumb v. Goan, supra. In 2007, the company replaced the Dell with an HP Vista, which became Roy’s new office computer.  Klumb v. Goan, supra. A few weeks later, Crystal bought a “second eBlaster software package” “surreptitiously installed it on” Roy’s new work computer.  Klumb v. Goan, supra.

As 2007 progressed, the marriage deteriorated and in September of 2007, Crystal had Roy served with divorce papers.  Klumb v. Goan, supra.  A week or so later, Roy agreed to go to alcohol rehabilitation and Crystal agreed to give the marriage another chance.  Klumb v. Goan, supra.  He gave her his car keys, which included his office keys, so she could use his car while he was away.  Klumb v. Goan, supra. 

While Roy was away, one of the company’s drivers came to its office at “3 or 4 am”, to “clock in and prepare his load for delivery.”  Klumb v. Goan, supra.  He saw Crystal in the office using one of the computers; the next day, he told the company’s office administrator what he saw.  Klumb v. Goan, supra.  That evening, she shut down her administrative computer (which she did not normally do) and all the printers; the next morning, when she logged into her computer and turned on the printers, one of them printed an email sent to Roy by a woman whom the opinion identifies as “`R.G.’”  Klumb v. Goan, supra. 

The heading of the email was as follows:

8 Sep 2007 07:29:30–0400

From: `rg ... @ . . .’ Alert

To: cmgoan@yahoo.com

Subject: [0060–rcv–eblaster] Re: letter

Klumb v. Goan, supra.  It was “addressed `Dear Roy’ and was closed, `Always,’ followed by R.G.'s first name.”  Klumb v. Goan, supra. 

When Roy came back in October, Hill gave him the email and a company salesman told him he had seen “multiple lines” in Crystal’s email inbox (when she was using Roy's computer to check email,  something she apparently did routinely) “containing Roy's name and `eBlaster’ next to it.” Klumb v. Goan, supra.  The salesman told him what eBlaster is and showed it to  him on Spectorsoft’s website; he said Roy was “`in shock.’”  Klumb v. Goan, supra. 

Around that time, Crystal’s attorney sent Roy an order concerning “an amendment to the prenuptial agreement” that provided if “either party was unfaithful” the agreement would be void and the “injured party would receive three fourths of the marital assets” in the divorce.  Klumb v. Goan, supra. Roy “was shocked” because he said he never agreed to this, or any amendment of the agreement.  Klumb v. Goan, supra.  

The divorce case was proceeding, and the lumber company independently, I gather, was trying to find out about eBlaster on its computer.  Klumb v. Goan, supra.  They served Crystal with a subpoena and she “produced a stack of documents a couple of inches thick containing eBlaster reports of Roy's  . . . activities on the Dell and Vista computers and copies of emails sent to Roy at his AOL email address which were intercepted by eBlaster and sent to Crystal at cmgoan@yahoo.com.”  Klumb v. Goan, supra.  

He also hired a computer forensics expert to analyze the material Crystal produced, and the expert found different versions of certain emails.  Klumb v. Goan, supra.  For example, he found Version #1 of an email from R.G., the woman noted above, to Roy, in which she offered to help him find a rehabilitation clinic and “express[ed] her sadness at” his divorce.  Klumb v. Goan, supra.  eBlaster sent Crystal this email.  Klumb v. Goan, supra.  The expert then found Version #2, which contains language suggesting Roy and R.G. were having “an extramarital affair.”  Klumb v. Goan, supra.   At trial, Roy testified that the email he received did not contain this language.  Klumb v. Goan, supra.   The expert found similar changes in other emails sent to Crystal.  Klumb v. Goan, supra.  

He also found different versions of the order noted above on Crystal’s laptop.  Klumb v. Goan, supra.  One contained no mention of the prenuptial agreement; others had the language that was in the order Crystal’s lawyer sent Roy.  Klumb v. Goan, supra.  

The divorce apparently proceeded and was granted, because the opinion we’re concerned with says Roy sued Crystal, “formerly his wife,” for violating the federal Wiretap Act, 18 U.S. Code § 2510 et. seq. and the Tennessee Wiretap Act, Tennessee Code § 39-13-601 et seq.  Klumb v. Goan, supra.  Section 2520 of Title 18 of the U.S. Code “creates a private right of action for damages for those persons whose "electronic communications have been intercepted, disclosed or intentionally used’ in violation of § 2511.”  Klumb v. Goan, supra.  

As the judge also noted, §§ 2511(1)(a) & 2511(1)(c) state that, except “as otherwise specifically provided” in the Wiretap Act, anyone who “intentionally intercepts . . . any wire, oral or electronic communication” or intentionally disclosed the contents of an oral, wire or electronic communication “knowing or having reason to know that” the information was obtained through an unlawful wiretap violates the Wiretap Act.  Klumb v. Goan, supra. 

In the opinion, the judge is deciding who won the lawsuit – Roy or Crystal.  The case went to a bench trial, so he heard the evidence and is now issuing his verdict.  In so doing, he noted that the Tennessee Wiretap Act (TWA) is essentially “identical to the federal Wiretap Act” so, given that and the “dearth of Tennessee law interpreting the TWA,” he, like other federal judges, relies on cases interpreting the federal Act in applying with the TWA.  Klumb v. Goan, supra. 

He then addressed Crystal’s argument that “the spyware she used did not “intercept” electronic communications in transit and, therefore, “did not violate either the federal or Tennessee wiretap acts.”  Klumb v. Goan, supra.  The opinion doesn’t say this, but I’m assuming she argued that the communications at issue were “stored” and therefore could not have been “intercepted.”  (For more on the “stored” versus “intercepted” issue, see this blog post.

The judge did not agree.  He relied on the “router switching analysis” he had articulated in an earlier order in this case:

Programming a computer, either through the use of spyware or legitimate means, to automatically forward an e-mail upon receipt by one e-mail account to another e-mail account requires that the e-mail be transmitted twice over the internet. First, the sender transmits the email, in packets, to the intended recipient through the internet. At the intended recipient's computer, the e-mail is automatically copied and launched again into the internet, in packets, to be transmitted to the third party's e-mail account.

That the e-mail may have rested momentarily in the intended recipient's account before being transmitted back though the internet to the third party is of no consequence. That the recipient and the third-party might access their respective email accounts on the same computer is immaterial. The e-mail has still been captured and rerouted within a `blink of an eye’ through the internet to someone who was not authorized to have it. That is contemporaneous enough.

Klumb v. Goan, supra (quoting Memorandum and Order (Jan. 26, 2011). 

The judge then applied the router switching analysis to the issues in this case:

[U]nder the router switching analysis, a wiretap occurs when spyware automatically routes a copy of an email, which is sent through the internet, back through the internet to a third party's email address when the intended recipient opens the email for the first time. . . .

The point is that a program has been installed on the computer which will cause emails sent at some time in the future through the internet to be rerouted automatically through the internet to a third party address when the intended recipient opens the email for the first time.

Klumb v. Goan, supra. 

He then held that there was “ample evidence presented at trial” that Crystal

via eBlaster intentionally and automatically intercepted emails sent to [Roy] through the internet and forwarded copies to herself through the internet at cmgoan@yahoo.com when [Roy] opened those emails for the first time from the Dell or Vista computer. Accordingly, the Court concludes [Crystal] violated the federal and Tennessee wiretap acts.

Klumb v. Goan, supra. 

He then addressed damages, noting that under the federal Wiretap Act and the TWA, a plaintiff can recover “the sum of the actual damages” he/she suffered and “any profits made by the violator as a result of the violation” or “statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.” Klumb v. Goan, supra.  Roy asked for “the statutory, liquidated damages of $10,000 for each instance in which [Crystal] installed eBlaster on one of the [lumber company’s] computers.”  Klumb v. Goan, supra. 

The judge reviewed caselaw, and concluded that the $10,000 liquidated damages amount is intended to compensate a plaintiff “`for all of a transgressor's misdeeds under the [Wiretap] Act, unless that transgressor has violated the Act on more than one hundred separate days, in which case compensation is $100 for each such day.’” Klumb v. Goan, supra (quoting Smoot v. United Transportation Union, 246 F.3d 633 (U.S. Court of Appeals for the 6th Circuit 2001)).  He therefore found that, while he had discretion to award less than $10,000 in liquidated damages, the $10,000 amount was “appropriate and proper in this case.”  Klumb v. Goan, supra.  

The judge then noted that he was also authorized to impose punitive damages under both the federal Wiretap Act and the TWA.  Klumb v. Goan, supra.  He chose to award Roy $10,000 in punitive damages, noting that the award was appropriate because the evidence in the case lead to “only one logical conclusion”:

[Crystal] engaged in a concerted scheme to gain advantage over [Roy] in a divorce by 1) tricking [him]into signing an altered prenuptial agreement with a provision that rendered the agreement null and void in the event [he] committed adultery, 2) secretly substituting a page in the September 27, 2007 Agreed Order with different pages that contained a provision making [Roy’s] premarital assets part of the marital assets and forfeiting three fourths of those assets to [Crystal] if [he] committed adultery, 3) secretly installing eBlaster on the computers regularly used by [Roy], 4) secretly intercepting at least three emails sent by R.G. to [Roy] and altering them to look like [they] were having an affair, and 5) intending to use the altered emails, altered prenuptial agreement and altered September 27, 2007 agreed order to obtain a significant amount of [Roy’s] property to which she was not entitled in a divorce from [him.]

Klumb v. Goan, supra.  

He found this amount was reasonable considering Roy’s conduct during the marriage (he “abused alcohol . . . which caused him to be verbally and physically abusive”) and during and after the divorce.  Klumb v. Goan, supra.  As to the latter, the judge said Roy sent Crystal “incendiary text messages and popped up in places around town where [she] could be found.” Klumb v. Goan, supra “His conduct included `shooting the bird’ at [her] and making pejorative comments about her in public settings.”  Klumb v. Goan, supra.  

I assume Crystal can appeal.  Klumb v. Goan, supra.  

(If you’re interested in reading more of the facts and/or  the other arguments Crystal made as to why she should not be held liable for wiretapping, you can find the full opinion here.)