Committing Wiretap Fraud on Your Spouse
1. Can I commit wiretap fraud on my spouse if I snoop/hack into his computer?
Yes, a spouse can certainly commit the offense of wiretap fraud against each one another. If you illegally access your spouse’s e-mails by hacking their PIN number or password, but without his or her permission, then this is a clear violation of the Wiretap Statute. However, there is an important distinction. It is only considered to be a violation of the Wiretap Statute if the information is in the transmission stage and not if it is in the post-transmission storage. Moreover, any illegal access of computer-related theft could also create criminal penalties as well. Finally, your soon to be ex-spouse could also add a claim to the divorce for a common-law tort of invasion of seclusion or invasion of privacy.
2. What type of activities could constitute a violation of privacy:
Activities that may be illegal or constitute a violation of privacy include the following:
a. Hacking password-protected accounts.
b. Snooping on a spouse’s computer or phone that is owned by his or her place of work.
c. Intercepting and/or recording cellular or cordless telephone calls between your spouse and another party that do not include you.
3. What is a wiretap violation?
The basic rule of wiretap violation of the New Jersey Wiretap and Electronic Surveillance Control Act is that it is illegal to intercept any electronic, wire, or oral communications through mechanical, electronic, or any other devices. (N.J.S.A. 2A:156A-1, et seq). Hence, a spouse who records or receives an e-mail transmission or any other communication of their spouse can be an illegal action.
As with everything else in the law, there are exceptions to this rule. In the case of White v. White, 344 N.J. Super 211 (Ch. Div. 2001), a New Jersey trial court held that if a spouse retrieves stored e-mails from the hard drive of a family computer, then this does not constituted any unlawful access to stored electronic communications. Thus, it is not considered to be a violation of the New Jersey Wiretap Statute. In the White Case, the wife was accessing e-mails and data be surfing through different directories of the hard drive on the family’s computer. The Union County Court upheld the fact that this was not any act of wiretap violation. The Court also drew a line of distinction between e-mails in active transmission and those in post transmission storage. E-mails in post transmission storage are considered to be outside definition of the ‘electronic storage, as defined in the New Jersey Wiretap Act. Therefore, the wife having access to the family’s computer in the family room could access, retrieve, and use the husband’s e-mails stored in the family computer’s hard drive. The wife does not need consent of the husband to use a Password or PIN (Personal Identification Number). The court’s reasoning was that the husband could not have any objective reasonable expectation of privacy in the e-mails stored in the family’s computer as everyone had access to it and hence, there was no question of any privacy.
4. What are some other interesting cases that address illegal hacking between spouses?
In the case of State v. Gaikwad, 349 N.J. Super 62 (App. Div. 2002), the defendant accessed accounts of various individuals. He then copied and read their electronic mail and received sensitive information by accessing ATT’s computer system without authorization. The Appellate Division affirmed his conviction under N.J.S.A. 2A:156A-27b. The court’s ruling was that Gaikwad’s unauthorized and deliberate access, reading and copying of an electronic mail in storage in another’s mailbox is in violation to N.J.S.A. 2A:156A-27b. However, this ruling is in conflict with the trial court’s holding in White v. White. In the latter case, the court upheld that the statute is inapplicable to electronic communications received by the recipient and placed in post-transmission storage.
5. What are some of the laws that pertain to data theft?
New Jersey Wiretap Statute, N.J.S.A. 2A:156A-27
According to The New Jersey Wiretap Statute, it is an offense invoking criminal penalties to access stored communications unlawfully.
The Statute provides:
a. A person is guilty of a crime of the fourth degree if he (1) Knowingly accesses a facility, providing electronic communication service without authorization or accesses the facility exceeding an authorization and
(2) Thereby alters, obtains, or prevents authorized access to electronic communication or a wire while it is still in electronic storage.
a. A person is guilty of a crime of the third-degree if he for the purpose of private commercial gain, commercial advantage, or malicious destruction or damage,
(1) Knowingly accesses a facility, providing electronic communication service without authorization or accesses the facility exceeding an authorization and (2) Thereby alters, obtains, or prevents authorized access to an electronic communication or a write while it is still in electronic storage.
Theft of Computer Data
According to N.J.S.A. 2C:20-25
“A person is guilty of theft if he knowingly or purposely and without authorization:
(a) Alters, takes, damages, or destroys any data, computer program, database, computer software or computer equipment present internally or externally to a computer, computer system or computer network,
(b) Alters, takes, damages, or destroys a computer, computer system or computer network,
(c) accesses or tries to access any computer, computer system or computer network for executing a scheme or fraud, or to obtain services, property or money, from the owner of a computer or any third-party, or
(d) Alters, tampers with, obtains, intercepts, damages, or destroys a financial instrument.”
If any party uses any evidence or financial records in a divorce action, such information has little or no monetary value. According to N.J.S.A. 2C:20-29, it will be a petty disorderly person’s offense. The law defines the crime as:
‘A person is guilty of petty disorderly person’s offense if he knowingly or purposely accesses and recklessly alters, destroys, damages, or obtains any data, database, computer, computer program, computer software, computer equipment, computer system, or computer network with a value of $200 or less.
2C:20-30. Damage or Wrongful Access to Computer System, No Accessible Damage; Degree of Crime
A person is guilty of third-degree crime if he without authorization and purposely accesses, alters, destroys, or damages any parts of a computer system or the total system, where the accessing and altering cannot be assessed any monetary value or loss.
2C:20-31. Disclosure of Data from Wrongful Access; No assessable Damage; Degree of Crime
A person is guilty of third-degree crime if he without authorization and purposely accesses any of the parts of a computer system or the total system itself and directly or indirectly discloses or causes to be disclosed data, data base, computer software or computer programs, where the accessing and disclosing cannot be assessed any monetary value or loss.
2C:20-32. Wrongful Access to Computer;
Lack of Damage or Destruction; Disorderly Persons Offense
A person is guilty of a disorderly person’s offense if he purposely and without authorization accesses a computer or any of its parts but this does not result in the altering, damaging or destruction of any property or services.
6. I am now divorcing my wife. I just obtained conclusive evidence that she has hacked into my personal computers. What steps can I take to protect myself?
Hacking into a private computer is a crime. You can report her to the NJ State Police. More specifically you can report her to the NJ State Police Cyber Crimes Unit. The Cyber Crimes Unit (CCU) is composed of State Police enlisted detectives, civilian analysts, and task forces from other police agencies. The CCU has two investigative squads and additional personnel dedicated to the FBI Regional Computer Forensic Laboratory (RCFL). Listed below are the responsibilities of the Cyber Crimes Unit.
Contact the Cyber Crimes Unit: (609) 584-5051 ext. 5664
CCU Investigations Squad
The mission of the CCU Investigation squad is to conduct and assist in investigations where computers, networks, telecommunication devices, and other technological instruments are the vehicle or target for the commission of criminal acts against network resources critical to the function of corporate or government entities. These vehicle or target intrusions lead the unit to specialize in the investigations of:
7. What is the “takeaway” from this article?
In any divorce trial, DV case, or a plenary hearing e-mail correspondence(s), text messages, phone calls, Facebook posts, or any other publicly-accessed information, may be admisable. However, the rules of evidence always apply. New Jersey Divorce law as to the unauthorized access to computer systems, stores files, PIN(s) or password(s) is evolving at a fast pace. However, keep in mind that there are many common law torts that can also burn you if you steal info from your spouse’s computer. If the unauthorized access is from an electronic storage device (for example a computer system), there is a common-law tort of invasion of privacy. A spouse can also receive a civil remedy under the New Jersey Wiretap Statute. Besides, unauthorized access of a computer system will violate the criminal statutes of N.J.S.A. 2C:20-25, N.J.S.A. 2C:20-31, N.J.S.A. 2C:20-32 and N.J.S.A. 2C:20-30, or any one or combination of the above. Therefore, if a person uses a PIN or Password or otherwise and if you obtain personal data illegally, these actions could constitute crime, and create a disaster for him or her.