Husband and Wife married in 2006. He was a wealthy businessman and she a new attorney.

Prior to the marriage, Wife purchased spyware called “eBlaster.” eBlaster is a computer software program that can perform various spyware functions. It can record every keystroke made on the computer on which it is installed. It can also keep track of all websites visited and all applications used on that computer, and it can capture screenshots of instant messages and cached webpages. Further, it can be directed to automatically forward copies of incoming email accessed on that computer to a third party email address.

After the marriage, Wife surreptitiously installed eBlaster on Husband’s work computer. She set up the program to send a report of all computer activities to her email address every hour.

After about 1.5 years of marriage, the marriage had deteriorated. Wife filed for divorce.

Husband hired a forensic computer expert to examine both his work computers and Wife’s laptop computer. In doing so, he discovered proof that Wife had intercepted his emails and altered added extra language to the emails to make it appear that Husband was having an adulterous affair.

Once Wife’s actions were exposed, the divorce action was settled.

After the parties were divorced, Husband brought a civil action against Wife in federal court asserting claims under the federal Wiretap Act and the Tennessee Wiretap Act, both of which are nearly identical. Specifically, § 39-13-601(a)(1)(A) and (a)(1)(C) of the Tennessee Wiretap Act provides that a person commits an offense who

(A) Intentionally intercepts, . . . Any wire, oral, or electronic communication; [or] . . . (C) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection (a) . . . .

What is “interception” of an electronic communication? First, Wife argued that the spyware she used not “intercept” electronic communications in transit and, therefore, did not violate either the federal or Tennessee wiretap acts.

In this case, at Husband’s computer, the email was automatically copied and launched again into the internet, in packets, to be transmitted to the Wife’s email account. That the email may have rested momentarily in Husband’s account before being transmitted back though the internet to Wife is of no consequence. That Husband and Wife might access their respective email accounts on the same computer is immaterial. The email was still 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. Thus, 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 trial court concluded:

There was ample evidence presented at trial that [Wife] via eBlaster intentionally and automatically intercepted emails sent to [Husband] through the internet and forwarded copies to herself through the internet [] when [Husband] opened those emails for the first time…. Accordingly, the Court concludes [Wife] violated the federal and Tennessee wiretap acts.

Did Husband consent to the spyware? Wife then argued there was no violation because Husband consented to her placing the spyware on his computer to prevent his son from looking at pornography and because of his concerns that an employee might send valuable business secrets to a competitor.

It is not a violation of the federal Wiretap Act or the Tennessee Wiretap Act for a person to intercept an electronic communication where one of the parties to the communication has given prior consent.

The trial court rejected this argument as well, finding:

The Court does not find it persuasive that [Wife] had [Husband’s] consent to put spyware on the two computers he used in order to monitor his son or to prevent the leak of trade secrets to a [business] competitor….

The single most persuasive piece of evidence presented at trial that [Husband] did not consent to placing eBlaster on the [work] computers is evidence provided by [Wife]: the two taped conversations of early November 2007 between [Wife] and [Husband] in which [Husband] told [Wife] that some [] employees believed she had put eBlaster on [work] computers. [Wife] feigned complete ignorance of eBlaster and acted as if she were furious to be accused of such behavior. Had spyware been something they both had agreed upon in order to monitor his son’s or [] employees’ activities, then she would have reminded him of that…. Such conduct is consistent with a secretive effort to intercept [Husband’s] communications, not with a mutually agreed upon effort to monitor the conduct of [his] children for their welfare.

So what are Husband’s damages? A person whose electronic communication has been intercepted in violation of the federal and Tennessee wiretap acts may obtain damages including punitive damages, and reasonable attorney’s fees and costs. Under both the federal Wiretap Act and Tennessee Wiretap Act, Husband may recover the sum of the actual damages suffered by him 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. The $10,000 liquidated damages amount is designed to compensate a claimant for all of a transgressor’s misdeeds under the 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.

Because Husband could not prove that his emails had been intercepted on more than 100 days, the trial court found he was entitled to the liquidated damages sum of $10,000.

The trial court also awarded punitive damages to Husband in the amount of $10,000, stating:

All this evidence considered as a whole leads to only one logical conclusion: [Wife] engaged in a concerted scheme to gain advantage over [Husband] in a divorce by … (3) by secretly installing eBlaster on the computers regularly used by [Husband], (4) by secretly intercepting at least three emails sent [] to [Husband] and altering them to look like [Husband was] having an affair, and (5) by intending to use the altered emails … to obtain a significant amount of [Husband’s] property to which she was not entitled in a divorce from [Husband]. The Court concludes the only reason this plan was not successful was that [Wife] was unable to keep eBlaster a secret. Once eBlaster was discovered, [Husband] launched into an investigation which uncovered [Wife’s] conduct. This conduct on the part of [Wife] was extreme and outrageous and merits punitive damages….

Considering the totality of the circumstances discussed herein, the Court awards plaintiff $10,000 in punitive damages.

Husband was also awarded his reasonable attorney’s fees and expenses, which are surely substantial in light of the comprehensive forensic computer examination.

K.O.’s Comment: Because there is very little Tennessee case law addressing many of these issues, the trial court relied in large part on the case law interpreting the federal Wiretap Act to interpret the Tennessee Wiretap Act.

Klumb v. Goan, 884 F.Supp.2d 644 (E.D. Tenn. July 19, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.