Tuesday, November 2, 2010

Open Season on Marital Bugging and Tapping in the United States Court of Appeals for the Fifth Circuit

A Texas court has ruled that a husband accused of monitoring his wife's computer through a keystroke logger did not violate federal wiretapping laws. 

Larry Bagley was sued in June by his wife Rhea Bagley, who accused him of surreptitiously placing audio recording devices in their house as well as a software keystroke logger. The Bagleys are in the process of divorcing.

The complaint in this civil case says that during the divorce proceedings, the husband revealed the existence of the surveillance tech and acknowledged that the "software recorded screenshots of activity on this computer." The husband replied in court documents that "in all conversations, the defendants' children were present and defendant was able to consent to recordation by way of vicarious consent."

U.S. District Judge Lee Rosenthal ruled on October 18 in favor of the husband, saying that the court was required to follow a Fifth Circuit decision saying that the federal wiretap law known as Title III does not apply to marital relationships.

Here are some excerpts from the court's opinion:
Whether Title III provides a remedy for interspousal wiretapping within the marital home is a question that has divided the federal courts of appeal. The Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits have held that such wiretapping is actionable under Title III. The Second and Fifth Circuits have held that Title III does not apply to interspousal wiretaps. (more)

P.S. The United States Court of Appeals for the Fifth Circuit includes:
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