Parental Exceptions to Eavesdropping Laws Under Ohio and Federal Law

Author: LegalEase Solutions 

QUESTIONS PRESENTED

  1. Can a parent access on a home computer the e-mail communications sent to a minor child by the child’s father (after divorce)?
  2. If the mother attempts to introduce those communications in a family law court in Ohio, could the mother be deemed to have violated any state or federal laws on eavesdropping?
  3. Are there parental exceptions, for the parents of minors, to the eavesdropping laws? Do these exceptions hold even when one parent is intercepting the communications of the other?
  4. Does a master account holder have the right to look at any account regardless of who uses the account?
  5. Are there distinctions between intercepting communications before the intended recipient receives the communication versus after it has been received?

SHORT ANSWERS

The above questions, for the most part, do not have straight YES or NO answers. After a brief discussion of the facts of the case, the relevant statutes applicable to the facts and in light of the case law interpreting the statutes, it appears, generally speaking, that the mother would not be in violation of any state or federal laws.

INTRODUCTION

The parties were divorced in Ohio. The father stayed in contact with his child, partly through e-mails. The mother pays for the e-mail service in her house and has a master account set up with sub-0accounts. The child accesses e-mails through one of these sub accounts, based upon the mothers’ master account. The mother had the chance to view some of the e-mails sent by the father to the minor child. The Mother now wants to present some of these e-mails to a family court in Ohio. What stops her from disclosing these emails is the potential application of various Federal and State Privacy, eavesdropping, electronic communications interception etc., laws.

DISCUSSION

In particular, the relevant federal statute that prohibits such production of intercepted communication is Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Federal Wiretap Act). 18 USCS 2515, which states in part –

18 USCS Sec 2515, Prohibition of use as evidence of intercepted wire or telephone communications –  “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived there from may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”

Note that Section 2515 only restricts the use of wire or oral communications, and do not cover electronic communications.   See United States v. Steiger, 318 F.3d 1039 at 1051, where the court held that  the Wiretap Act does not provide a suppression remedy for electronic communications unlawfully acquired under the Act.  However, although such electronic communication may not be suppressed, the Act does make the interception of electronic messages unlawful generally.

As such most of the cases demanding enforcement of the Federal eavesdropping laws have been for purposes of declaring unlawful, the interception of telephonic conversation or oral conversation. To understand the applicability of the above section to the case at bar and other related issues it touches upon demands a review and discussion of the following Federal and State Acts, and whether or not they apply to the act of accessing of the e-mails of a minor child, by the mother and their further presentation by her in a court of law. The pertinent Acts include:

  • Federal Wiretap Act (1968)
  • Stored Communications Act
  • Ohio’s corresponding Wiretap Act
  1. THE FEDERAL WIRETAP ACT

The Federal Wiretap Act 18 USC 2511 anticipates and protects privacy in aural communications, and prohibits unlawful interceptions, or recording of wire and electronic communications.  Section 1(a) prohibits one who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication”.   While the language of the Wiretap Act does not make is clear that email messages would fall within the gambit of ‘electronic communication”,  after recent amendments that enlarged the scope of the word ‘electronic communications’ under the Wiretap Act, protection is granted to a certain extent to emails, until the time the e-mail reaches or is received by its recipient.

In the case at hand, if the mother read the e-mails after they were received or read by the child she has not committed an unlawful act, as the act of transmission and temporary storage for the purpose of transmission is complete. The electronic communication is protected only during transmission, under the Wiretap Act. However, accessing it once transmission is complete entails no liability under the Wiretap Act.

In addition,  the Wiretap Act also provides certain exceptions, wherein any such interception may not amount to being unlawful if certain conditions are satisfied. Under Section 2511 (2)(c),  the intercept of communications is not unlawful if one of the parties to the communication has given prior consent to such interception. Under 2(d) it is not unlawful if done under the color of law. Thus if the mother can be shown to be acting under color of law, and/or able to give or have given, consent on behalf of her minor child to the interception, she could be excused from the liabilities that would otherwise ensue.

This brings us to a very crucial point that could be at issue, which is, whether the mother gave consent or vicarious consent, on behalf of the minor child?

  1. Vicarious Consent Doctrine

The most cited case in this regard is, Samuel B. Pollock Jr. and Laura Pollock v. Sandra T. Pollock, Oliver Barber and Luan C. Glidewell, 154 F.3d 601 (6th Circuit, 1998).  In this case the Defendant mother learned that her daughter was being represented in the custody dispute, between the parents, by independent counsel. Thereafter, the Defendant tape-recorded a conversation between her daughter and Plaintiff stepmother, without her daughter’s knowledge or consent. Plaintiffs, Father and stepmother, filed an action, alleging that defendant violated the Federal Wiretap Act.  The district court granted summary judgment for Defendant, holding that she qualified for the consent exception to the Act, found in 18 U.S.C. Sec 2511 (2)(d), as she had vicariously consented to the recording for her daughter because she was concerned that Plaintiff father was emotionally abusing the daughter.  Id. at 610. The court held that the vicarious consent doctrine was properly adopted, however it articulated under what conditions the doctrine was appropriate:

[W]e agree with the district court’s adoption of the doctrine, provided that a clear emphasis is put on the need for the “consenting” parent to demonstrate a good faith, objectively reasonable basis for believing such consent was necessary for the welfare of the child. Accordingly, we adopt the standard set forth by the district court in Thompson and hold that as long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording.

Id.  Thus the 6th Circuit made clear that the vicarious consent doctrine was appropriate when the parent recording the conversation could demonstrate a good faith, objectively reasonable basis for believing such vicarious consent was necessary.  Various courts in the Sixth circuit as well as other state circuits and federal courts have affirmed the applicability of vicarious consent doctrine to parental consent

The Michigan Court of Appeals initially rejected the doctrine in  Williams v. Williams, 229 Mich. App. 318, 581 N.W.2d 777 (1998), where the issue was whether a minor’s custodial parent could tape record the child’s telephone conversations with the non-custodial parent. The parent’s argument was that he, as the child’s custodian, vicariously had the latter’s consent to tape-record the conversations. The Court held that the federal wiretap statute is silent as to what types of consent Congress contemplated under the statute.

But the Michigan Supreme Court later remanded the Williams case back to the Michigan Court of Appeals for reconsideration in light of Pollock, supra  459 Mich 981, 593 N.W. 2d 559 (Mich 1999).  On remand, the Michigan Court of Appeals reversed its earlier ruling regarding the vicarious liability exception to Title III liability. The court recognized that, “because the Sixth Circuit Court of Appeals has now spoken on the issue and no conflict among the federal courts exists, we are bound to follow the Pollock holding on the federal question in the case.” Id. at 427. Accordingly, the only case which had explicitly rejected the vicarious consent exception was subsequently reversed, and its decision was brought into conformity with all other federal decisions that have addressed the issue.

In the case at hand, even if the mother was subject to liability under the Federal Wiretap Act, she would be exempted under the vicarious liability exception if she could demonstrate that her reasons for reading the emails were out of objective good faith out of concern for her daughter.

  1. Telephone Extension Exception

Furthermore, in various decisions by the courts interpreting the Sections of the Wiretap Act, the courts have regularly applied what has come to be known as the ”Telephone Extension Exception”. In these situations where there is an extension/extensions to a telephone line there cannot be an expectation of privacy and any interception via such an extension is excused from liability under the statute. Also known as the business exception, it is applied in employer-employee cases too where an employee under the control and command of his employer cannot expect privacy in communication while using the various means of communication during ordinary course of business.

In Judy Campbell v. Ricky, Amy L. Bradley & Helen Rice Grinder, 2 F. Supp. 2d 1186 (1998 U.S. Dist), after defendant father recorded phone calls made by his child to plaintiff mother, the mother sought damages under the Federal Wiretap Act.  The court found that the extension phone exception to Title III applied to a situation where a parent recorded his child’s phone conversation from a phone extension within the parent’s home.  Id. at 1190.. Because the father recorded the child’s telephone conversations from an extension phone within his home, the court held he was not liable under Title III. Id.  The court also held that the father was not liable under the Wiretap Act under the doctrine of vicarious consent, finding that the father acted of out good faith and the best interests of his child.  Id. at 1191

Thus many cases show that a parent can give vicarious consent on behalf of his /her child on grounds of acting in good faith and the best interest of the child and escape potential liability under the Wiretap Act.. Furthermore, the rationale of the telephone exception could be applied to the case at bar as well. A child’s use of an email sub-account is similar to a child using a telephone extension.  Here, the child’s email account is a sub-account of her mother’s account,  both the mother and child live in the same house, use the same computer on which mother has master account.. If the mother does happen to her daughter’s emails, it is arguably similar to a situation where a parent on an extension phone line happens to hear a conversation between her child and the other parent.  Thus, a good argument can be made that the parent should be excused from liability as in case of phone extension.

In Anonymous v. Anonymous, 558 F. 2d. 677, and London v. London, 420 F. Supp. 944, the courts held that acts taking place in the family home involving family members were little different than the taping of and listening to a conversation on an extension phone. As such the e-mail interception in the case at bar has taken place within the walls of the house between a mother and her minor child, and the language of the statute should not be extended so as to take away from a mother the right of upbringing her child with the right amount of care, discipline and guidance.

  1. The Stored Communications Act

The Stored Communication Act protects messages that are temporarily stored in intermediate storage, after the sender sends the message but before the intended recipient retrieves it.  The Stored Communications Act does not protect retrieval of a message from post- transmission storageIn contrast, the Wiretap Act protects against unauthorized interception of electronic communications.  To constitute a violation of the Wiretap Act, the email must be intercepted during its transmission, and before the intended recipient reviews it. To constitute violation of the Stored Communications Act the communication should have been intercepted when in storage, during transit.  In other words the Wiretap Act prohibits interception while the communication is in transit, while the Stored communications Act prohibits interception while the communication in storage for the purposes of such transit. As such once the transit is complete, i.e. the recipient downloads/views those e-mails they fall out of the ambit of the Acts.

Furthermore, under the Stored Communications Act it is a violation if a person “intentionally accesses without authorization a facility through which an electronic communication service is provided.”  In the instant case, it can be argued that the home computer is the “facility through which an electronic communication is provided”. If the home computer is regarded in this light, and the mother is the owner of the computer, then the mother’s actions do not violate the Stored Communications Act, as she has authorization to her own computer.

In addition, the above Act provides an exception to liability if the conduct was authorized by a “user of that service with respect to a communication of or intended for that user…”  Section 2701(c)(2).  No case law has been found in any federal court which addresses whether the vicarious consent doctrine can be applied to the Stored Communications Act.  In any case, a good argument can be made that the doctrine is equally applicable to the Stored Communications Act as it is to the Wiretap Act.

III.       OHIO WIRETAP ACT ORC Ann. 2933.51

The Ohio Wiretap Act, ORC 2933.51 et. seq. mirrors the language of the Federal Wiretap Act.  Under § 2933.52, the Statute prohibits a person from purposefully intercepting or attempting to intercept a wire, oral or electronic communication.  Unfortunately Ohio state courts have given no guidance as to the applicability of Ohio’s wire tap act on communication between a parent and a child, as is the case here.  Ohio courts have not considered the potential applicability of the vicarious consent doctrine, as found under federal case law.  However it is prudent to expect that if Ohio courts are confronted with a situation involving the interception of emails going to a minor from a parent, that the Ohio state courts would find the federal court decisions on the matter highly persuasive, as the Ohio Wire Tap Act mirrors the language of the Federal Wire Tap Act.

CONCLUSION

In summary, we can safely conclude that though the various  eavesdropping laws prohibit interception of communication: – oral, wire & electronic, the courts will often carve out exceptions to protect minor children, and/or to give a parent the ability to monitor a minor’s communication.   In the case at hand, the mother owns the home computer from which the minor is accessing her email.  Under the Federal Wiretap Act, its clear that the mother’s reading of the minor’s email would not qualify as an interception, as the Act criminalizes only interception during transmission.  The mother would most likely not fall within the scope of the Stored Communications Act, as the mother owns the computer and thus has authorization to access the contents on the computer, falling within an exception of said Act.  Just as the mother should not be held liable if she overhears her child conversation with her father on an extension phone in the house, similarly a common computer in the house is susceptible to usage by all members of the house. Finally, the Ohio Wiretap Act is modeled after the Federal Wiretap Act, and Ohio courts will likely follow the precedent of federal courts in the application of exceptions to the prohibited conduct.

Therefore, the mother should be able to produce the said e-mails in an Ohio court without fear of inviting liability under the wiretap laws as nothing could be said to her intentions but the child’s good faith throughout.

FEDERAL WIRETAP ACT

18 USC Sec 2511. Interception and disclosure of wire, oral, or electronic communications prohibited

(1) Except as otherwise specifically provided in this chapter any person who–

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when–

(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or

(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or

(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;

(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; or

(d) intentionally uses, or endeavors to use, 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 subsectionshall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

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STORED COMMUNICATIONS ACT

18 USC Sec 2701. :- “Unlawful access to stored communications

(a) Offense.–Except as provided in subsection (c) of this section whoever–

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.”

For definitions,

18 USC Sec 2510 (17) “electronic storage” means–

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication; and

(18) “aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception.

Ohio Rev. Code Ann. Sec 2933.52 states in part: (A) No person purposely shall do any of the following:(1) Intercept, attempt to intercept, or procure any other person to intercept or attempt to intercept any wire or oral communication; (2) Use, attempt to use, or procure any other person to use any interception device to intercept any wire or oral communication, if either of the following apply: (a) The interception device is affixed to, or otherwise transmits a signal through, a wire, cable, satellite, microwave, or other similar method of connection used in wire communication; (b) The interception device transmit communications by radio, or interferes with the transmission of communications by radio. (3) Disclose, or attempt to disclose, to any other person the contents, or any evidence derived from the contents, of any wire or oral communication knowing or having reason to know that the contents, or evidence derived from the contents, was obtained through the interception of the wire or oral communication in violation of Ohio Rev. Code Ann. Sec 2933.51 to 2933.66.

Ohio Rev. Code Ann. Sec 2933.52 proscribes the interception, etc., of two categories of communications: wire and oral. These are defined respectively at Ohio Rev. Code Ann. Sec 2933.51 (A) (B) as: (A) “Wire communication” means any communication that is made in whole or in part through the use of facilities for the transmission of communications by the aid of wires or similar methods of connecting the point of origin of the communication and the point of reception of the communication. (B) “Oral communication ” means any human speech that is used to communicate by one person to another person. The action which is proscribed by Ohio Rev. Code Ann. Sec 2933.52 as an “interception” is defined as follows: (C) “Intercept” means the aural acquisition of the contents of any wire or oral communication through the use of an interception device. Aural is defined as of the ear or sense of hearing.