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Illegally Obtained E-Mails

October 13, 2011

By John E. Thomas, Esq.

When discussing the admissibility of e-mails and other electronic communications, you, as a family law paralegal, need to be aware of the existence of five acts or statutes:  (i) the Federal Wire Tap Act, as originally passed in 1968, and as amended in 1986 by the Federal Electronic Communications Privacy Act (18 U.S.C. §§ 2510-2520), (ii) the Federal Stored Communications Act (18 U.S.C. §§ 2701-2720), (iii) section 631 of the California Penal Code, which is sometimes referred to as the California Wiretap Act, (iv) section 632 of the California Penal Code, which is sometimes referred to as the California Eavesdropping and Confidential Communication statute, and (v) section 502 of the California Penal Code, which makes illegal a broad range of computer related activities.   These five statutes or acts are collectively referred to in this document as the “Five Primary Electronic Communications Statutes.” 

1.  Can a spouse in a family law proceeding be criminally charged for violating any or all of the Five Primary Electronic Communications Statutes?

Yes.  There is no exception in any of the statutes based on the fact that the person committing the crime is married to the victim.  (See People v. Otto (1992) 2 Cal.4th 1088, 1107 (“In sum, we follow a majority of the courts in declining to read into [the Federal Wiretap Act] an exception for interspousal or domestic wiretapping.”).)

 2.  Can a spouse in a family law proceeding be sued in a separate civil action for violating any or all of the Five Primary Electronic Communications Statutes? 

Yes.  Each of these acts or statutes (or companion statutes) provide that the victim may sue the perpetrator of the illegal acts for civil damages resulting from the criminal violation.  In appropriate factual situations, punitive damages can be awarded. 

3.  Ignoring possible criminal charges for trespassing, is it illegal to access and/or to take e-mails off someone else’s computer without his or her permission?

Yes.  This clearly violates section 502 of the California Penal Code, which, among other things, makes it illegal if someone “…[k]nowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.”  (California Penal Code § 502(c)(2)).  Depending on how the computer was accessed and how the e-mail was taken, the taking of the e-mail may also violate (i) section 632 of the California Penal Code, (ii) the Federal Wiretap Act, as amended by the Electronic Communication Privacy Act, and/or, (iii) the Federal Stored Communication Act. 

4.  Does the Exclusionary Rule (which prohibits the use of illegally obtained evidence by government agents in a criminal proceeding) exclude the use of that same evidence in a civil proceeding?

No.  The Exclusionary Rule, based on the Fourth Amendment of the United States Constitution, does not apply to civil cases.  (U.S. v. Janis (1976) 428 U.S. 433, 454; Ecker v. Raging Waters Group, Inc. (2001) 87 Cal.App.4th 1320, 1329 (“The rule of inadmissibility [of evidence illegally seized by the police] was developed in criminal cases for the primary purpose of deterring unlawful activity by law enforcement officers…; hence, the rule cannot be invoked in civil proceedings.”).)

5.  Absent a specific statutory prohibition, is illegally obtained evidence either automatically or presumptively inadmissible in a civil proceeding?

No.  Absent a specific statutory prohibition, no distinction is made between legally and illegally obtained evidence.  Under section 351 of the California Evidence Code, “Except as otherwise provided by statute, all relevant evidence is admissible.“

6.  If evidence is obtained by violating the Federal Stored Communications Act or section 502 of the California Penal Code, is it, as a matter of statutory law, inadmissible in either a federal or state court proceeding?

No.  There are no statutory prohibitions against admitting any evidence obtained by violating either the Federal Stored Communication Act or section 502 of the California Penal Code. 

7.  As a matter of statutory law, are wire or oral communications obtained by violating the Federal Wire Tap Act inadmissible in both federal and state court proceedings?

Yes.  Under 18 USC 2515, “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court … 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.”

8.  As a matter of statutory law, are e-mails obtained by violating the Federal Wire Tap Act, as amended by the Federal Electronic Communication Privacy Act, inadmissible in either a federal or state court proceeding?

No.  Section 2515 only excludes evidence of “wire and oral communication” collected in violation of the Federal Wiretap Act.  When the Federal Wiretap Act was amended in 1986, the language of 2515 was not expanded or modified to include e-mails or other electronic communications.  Thus, section 2515 does not make inadmissible e-mails and other electronic communication obtained in violation of the applicable federal statutes.  (U.S. v. Steiger (11th Cir. 2003) 318 F.3d 1039, 1050 (“By its terms, 18 U.S.C. § 2515 applies only to ‘wire or oral communications’ and not to ‘electronic communications.’”).

9.  As a matter of statutory law, is the use of an e-mail obtained by violating the Federal Wire Tap Act, as amended by the Federal Electronic Communication Privacy Act, a separate federal crime?

Yes.  Under 18 USC 2511(1)(d), it is a federal crime if a person “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 subsection…”  The obvious question is whether, by attempting to introduce into evidence an e-mail a lawyer knows was obtained by violating the applicable federal statutes, the lawyer is committing a federal crime?  Did Congress really intend to make this a crime?  If so, how can this result be reconciled with the fact that illegally obtained e-mails were not made inadmissible in state and federal court proceedings? 

10.  As a matter of statutory law, is any evidence obtained by violating section 631 of the California Penal Code (the California Wiretap Act) or section 632 of the California Penal Code (the California Eavesdropping and Confidential Communication statute) inadmissible in a family law proceeding?

Yes.  Both section 631 and section 632 of the California Penal Code specifically prohibit the admission of any evidence obtained in violation of these statutes.  These statutory prohibitions are repeated in section 2022 of the California Family Code. 

11.  Before evidence can be excluded pursuant to a statutory prohibition in a criminal statute, does the person who allegedly obtained the illegal evidence by violating the statute at least have to be criminally charged with the violation?

No.  Apparently, the judge before whom the case is pending must decide by a preponderance of the evidence whether the criminal statute has been violated.  If so, in a family law proceeding, the evidence is excluded, and, under section 2022(b) of the California Family Code, the judge “may refer the matter to the proper authority for investigation and prosecution.”

12.  Can otherwise excluded evidence obtained in violation of either the Federal Wiretap Act, section 631 of the California Penal code, or section 632 of the California Penal Code be used for impeachment?  

Yes.  In Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1497, the appellate court held, “…[T]he evidentiary sanction of section 632(d), cannot be construed so as to confer upon a testifying witness the right to commit perjury.”  (See also, U.S. v. Echavarria-Olarte (9th Cir. 1990) 904 F.2d 1391, 1397 (“Even if we were to assume, arguendo, that the challenged wiretaps were invalid, they were, to the extent that they contradicted statements made on direct examination, admissible for impeachment purposes.”).)  Otherwise excluded evidence can also be used to refresh a witness’s recollection.  (Frio v. Superior Court, supra, 203 Cal.App.3d at 1492 (“…[U]se of [the illegally obtained evidence] to refresh recollection does not involve reading or offering them in evidence. As such, section 632, subdivision (d), is not violated by using said materials in that fashion.”).)  Whether other exceptions to the Exclusionary Rule apply is not as clear. 

13.  Is section 632 of the California Penal Code the only statute that possibly prohibits the introduction of illegally obtained e-mails into evidence?

Yes.  None of the other statutes that specifically exclude illegally obtained evidence can be interpreted to include e-mails.  None of the other statutes that exclude illegally obtained evidence include electronic communications.  Basically, section 632 of the California Penal Code makes it illegal use a “recording device” to record “a confidential communication.”  Although there is no reason to believe the result will be otherwise, to date, no appellate court has held that a computer is a “recording device” or that an e-mail falls within the purview of this statute. 

14.  Is it clear that section 632 of the California Penal Code (the California Eavesdropping and Confidential Communication statute) is not preempted by federal law? 

No.  In 2006, a California appellate court specifically held that section 632 of the California Penal Code was not preempted by federal law.  (Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 106 (“…[T]here is no basis for concluding that application of [section 632 of the California Penal Code] is preempted by federal law.”).)  However, in 2007, a California federal district court judge held that section 631 of the California Penal Code was preempted by federal law.  (Bunnell v. Motion Picture Ass’n of America (C.D. Cal 2007) 567 F.Supp.2d 1148, 1154 (“The scheme of the [Federal Electronic Communication Privacy Act] is very comprehensive … As such, it is apparent to this Court ‘that Congress “left no room” for supplementary state regulation.’”).)  If the opinion of this federal district court judge is correct, the reasoning that resulted in the finding that section 631 of the California Penal Code was preempted by federal law is equally applicable to section 632 of the California Penal code. 

15.  Is there any authority that supports the proposition that a trial judge can refuse to admit illegally obtained evidence in a civil proceeding even when there is no specific statutes prohibiting its use?

Yes.  In Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, the appellate court affirmed a trial court’s decision to dismiss a civil case because the plaintiff’s investigator obtained evidence by means of an illegal search.   Arguably, if a trial court has the authority to dismiss an entire case because it was based on illegally obtained evidence, it has the authority to impose the lesser penalty of simply excluding the illegally obtained evidence.  When it comes to evidentiary issues, trial courts have broad discretion. 

ABOUT THE AUTHOR:  Attorney John Thomas has been practicing law in Kern County since 2008.  He graduated from the University of California, Los Angeles before he went on to attend law school at the University of California, Davis.  After spending a year in the Kern County District Attorney’s Office, he began working as a family law lawyer for the Law Offices of Edward J. Thomas.  Currently, John is the treasurer of the family law section of the Kern County Bar Association.  Next year, he will be the President of that organization. 

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