This post isn’t about law enforcement’s using a keystroke logger. It’s about one spouse using a logger against the other in a divorce action.
There are actually several reported cases referring to spouses doing this, so I assume it’s becoming more common. It’s another of the interesting facets of advancing technology . . . the who and what can you trust issue. Can you trust your keyboard?
Anyway, this particular case is Bailey v. Bailey, 2008 WL 324156 (U.S. District Court for the Eastern District of Michigan 2008). Here, according to the court’s opinion, are the facts that led to Jeffrey Bailey’s installing a keystroke logger on a computer he and his then-wife Deborah both used:
[Deborah] and [Jeffrey] Bailey were married . . . and had three children. Unfortunately, the marriage began to deteriorate. [Jeffrey] had suspicions about [Deborah]'s use of the internet, . . . . [I]n fall of 2005 he clicked onto his wife's email account. . . . He saw . . . messages for [Deborah] from a website called Killer Movies Forum. [Jeffrey] clicked on the hyperlink associated with the alerts and read the messages. The messages were from a person known as `Finti’ and were of a sexual nature. . . .Bailey v. Bailey, supra.
Shortly after [Jeffrey] . . . she opened a new email account. . . . Around the same time, [Jeffrey] downloaded a . . . key logger software and installed it on both home computers. . . . [Jeffrey] used the key logger program to learn the password for both [Deborah]'s . . . email account and her private messaging system on the Killer Movies Forum. [Jeffrey] learned that [Deborah] was continuing her internet sexual activities.
On January 9, 2006, [Jeffrey] left . . . with the three children. . . . In anticipation of divorce proceedings, [Jeffrey] provided his attorney, Todd Pope, with . . . emails and messages taken from the home computer. Throughout the divorce proceedings, [Jeffrey] supplied . . . Pope with . . . emails and messages. . . . [Jeffrey] denies that he accessed the key logger program on the home computer after he left . . . . [He] claims he continued to access [Deborah]'s accounts using the passwords he had obtained using the key logger, or by guessing her new passwords which he claims all used family names. . . .
[Jeffrey] filed for divorce on January 11, 2006. He alleged [Deborah] was an alcoholic with a history of depression and sought full physical custody of the children.
Deborah lost custody of the children in the divorce. She then filed a federal suit against Jeffrey and his lawyer, seeking damages for “emotional problems and distress she claims to suffer” due “to the loss of custody of her children” and an injunction preventing Jeffrey from “further use” of the keystroke logger. Bailey v. Bailey, supra.
As is usual in these cases, she had claims under a number of statutory and common law theories. I’m going to focus on four of them.
Her first claim was under Title III, the federal wiretap act. Specifically, it was under 18 U.S. Code § 2511, which essentially makes it unlawful to “intercept” a “wire, oral, or electronic communication.” The emails and other messages Jeffrey accessed with the keystroke logger qualified as an electronic communication under the statue. The real issue was whether he’d “intercepted” the contents of the messages. The district court noted that the courts which had addressed this issue all agree that interception only encompasses the acquisition of information that is “contemporaneous with” its being transmitted. As one federal court put it, to “intercept” a communication, you have to access it while “it’s in flight.”
The Michigan district court held that “here, the key logger only allowed Defendant Bailey to learn passwords, which were used to access and copy Plaintiff's email and messages. Defendant Bailey did not obtain the emails or messages contemporaneously with their transmission, and thus, the Wiretap Act does not apply.” Bailey v. Bailey, supra.
A second claim was under the Michigan eavesdropping statute, Michigan Compiled Laws § 750.539c. It says anyone “who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto . . .is guilty of a felony.” The statute also presumably creates a civil cause of action for someone, like Deborah, who was a victim of unlawful eavesdropping. The district court held, though, that Deborah did not have a claim under the statute:
[T]he device must be used with respect to a `conversation.’ The key logger software only stores as a text file the keys that are pressed on the keyboard of the computer on which the software is installed. When Plaintiff pressed the keys to enter her passwords, compose messages, or compose emails, she was not engaging in a conversation. First, she was not in a direct dialogue with anyone else. Second, the device . . . only recorded her keystrokes, not the response of the other side. The Merriam-Webster Dictionary defines `conversation’ as `oral exchange of sentiments, observations, opinions, or ideas’ . . . The `device’ does not record an exchange, but only . . . keystrokes. This statute was meant to prohibit eavesdropping in the traditional sense of recording or secretly listening to audible conversation.Bailey v. Bailey, supra.
So the court threw out those two claims. It also found that she had stated a cognizable cause of action under two other theories, which means, absent a settlement, that she can go to trial and see if a jury agrees that she deserves the relief she seeks.
The third claim was under 18 U.S. Code § 2701, part of the Stored Communications Act. Instead of protecting people from having their communications intercepted, this statute, as its name implies, protects the privacy of communications that have arrived at their destination and been stored. It did not protect emails and messages stored on the home computer Deborah used. It only protects emails and other communications when they are in “electronic storage” while being transmitted or are being stored by “an electronic communication service for purposes of backup protection of such communication.” 18 U.S. Code § 2510(7). The court found that if Jeffrey had accessed Deborah’s emails and/or other messages while they were being stored by, say, her ISP for the purpose of backup protection, then that would violate the statute. So that claim survived for trial.
The fourth claim was a Michigan common law tort claim for “intrusion upon seclusion”, a kind of invasion of privacy. According to the federal court, a plaintiff has to prove three things to establish an intrusion upon seclusion claim: “`(1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter through some method objectionable to a reasonable man.’” Bailey v. Bailey, supra.
Jeffrey doesn’t seem to have challenged the first two elements. He said she didn’t have an intrusion upon seclusion claim because the way he obtained her messages was not “objectionable to a reasonable man.” Specifically, he said “his actions were done after inadvertently discovering his wife was having sexual discussions on the internet, and were done to protect himself and his family.” Bailey v. Bailey, supra. To prevail here, Deborah had to show there was at least an issue of fact – an issue a jury needed to decide – as to whether what he did would be objectionable to a reasonable man. She did this, at least in part, by saying that he
continued to access her email even after divorce proceedings were complete. She provides an affidavit that claims she planted a false story of an affair with a neighbor in an email on January 2007, well after the divorce was final. She claims that on February 16, 2007, her daughter Chloe sent an email referencing the planted story, which Plaintiff takes to mean Defendant Bailey was continuing to access her accounts and passing the information to their teenage daughter.Bailey v. Bailey, supra. Deborah claimed Jeffrey continued “to access her private email after the divorce, and regarding matters that were no longer” his concern. Bailey v. Bailey, supra. The court found that she had raised a factual issue – that a jury needs to decide if Jeffrey’s “use of a key logger to learn her email and messaging passwords so he could access her private correspondence was objectionable to a reasonable man” (or woman, in this case). Bailey v. Bailey, supra.
So what does it mean? It means Deborah lost some (lost 6 of the claims she initially brought, actually) and won two. But, in winning two, she kept the case alive. It might mean a settlement, might mean a trial; if it’s a trial, no way to know who will win.
I decided to write about this case both, as I noted above, because it illustrates how we can use easily available technology to spy on each other (and how we an be oblivious to the fact we are being spied on). It’s also instructive to note, in case you’re thinking about doing something like this, that you could be sued if the target finds out what you did. And since some statutes – including some of the ones I discussed above – making doing this kind of thing a crime, you could be prosecuted, as well.