Police Blotter: Husband accused of tapping wife's PC

Monitoring spouse's computer with a keystroke logger is legal under federal wiretapping laws, judge rules, but says Texas wiretap laws may have been violated.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read

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.

"And while the plaintiffs raise well-reasoned arguments, it is not appropriate for this district court to deviate from binding circuit precedent in a case involving similar facts," Rosenthal wrote.

Federal law (18 USC 2511 says that anyone who "intentionally intercepts" any "wire, oral, or electronic communication" can be fined and imprisoned for up to five years. (There are exceptions for court-authorized wiretaps, network providers conducting maintenance, and so on.)

This is hardly the first time that keyloggers and similar spyware have been used in divorce cases. CNET's Police Blotter previously reported on a case in which a husband used a keystroke logger to spy on his wife's suspected relationship with another woman, who in turn sued to prevent the records from being used in the divorce case.

In a 2005 case, a judge ruled that a wife who installed spyware on her husband's computer to secretly record evidence of an extramarital affair violated state law. And in a New Jersey case, the husband admitted to wiretapping, which led a judge to raise the wife's share of the divorce settlement.

In the current Texas case, the judge's opinion was relatively narrow. Because there are other plaintiffs in the case (besides the wife) alleging that the surveillance was illegal, the case will continue. Their lawsuit also accuses Larry Bagley of violations of Texas' wiretap law, a claim that Rosenthal allowed to proceed.

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.

The defendant contends that he is entitled to dismissal of the federal statutory claim because of the interspousal exception to the Omnibus Act recognized by the Fifth Circuit. In Simpson, the Fifth Circuit held that while the Omnibus Act appears to apply by its terms to spouses, "Congress did not intend such a far-reaching result, one extending into areas normally left to states, those of the marital home and domestic conflicts." The Simpson court did not rule without reservation, explaining that "we are not without doubts about our decision" which "is, of course, limited to the specific facts of this case." The Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits have criticized the result and reasoning of Simpson.

While the Simpson court itself, as well as other circuits, find fault with the Simpson decision, it remains the law that governs the courts of the Fifth Circuit. And while the plaintiffs raise well-reasoned arguments, it is not appropriate for this district court to deviate from binding circuit precedent in a case involving similar facts. "It is a firm rule of this circuit that in the absence of an intervening contrary or superseding decision by [the Fifth Circuit] sitting en banc or by the United States Supreme Court," even another panel of the circuit cannot overrule a prior panel's decision. Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.1999); United States v. Setser, 607 F.3d 128, 131-32 (5th Cir.2010). Neither has occurred. Because Simpson is the law of this circuit, this court must follow it.

To the extent the defendant seeks to dismiss the federal statutory claims asserted by Rhea Lynn Bagley, the motion is granted. But the other plaintiffs' claims do not appear to be precluded because these plaintiffs were never married to Larry Bagley. The motion to dismiss is denied as to those plaintiffs.

To the extent the defendant moves to dismiss on the grounds that his children gave consent to the recording of the conversations for which they were present, that the computer keystroke monitoring program was not covered by the statute, and that the plaintiffs lacked a reasonable expectation of privacy in the home, the motion is denied. All these grounds require consideration of facts outside the pleadings. They are appropriately addressed on the basis of a developed record, in a motion for summary judgment, but not on a motion to dismiss.