a. Introduction
This provision is the state equivalent of the federal Wiretap Act. The law prohibits the use of recordings obtained through eavesdropping in litigation where they were “intercepted” without the victim’s consent.
b. Text of Statute
A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication. Eavesdropping is a class E felony.
c. Cases
1) Gurevich v. Gurevich, 886 N.Y.S.2d 558 (N.Y. Sup. Ct. 2009)
Procedural Posture: In wife’s matrimonial action against her ex-husband, she sought to introduce as evidence emails that she had obtained from his email account by using his password after the parties had separated. The court considered whether to exclude or admit the evidence.
Law: N.Y. Penal Law § 250.05
Facts: The parties had been married for sixteen years and had been separated for three years. In the midst of the parties’ dispute over child support, the wife, a software developer, retrieved emails from her husband’s email account without his permission. But the husband had never changed his password following the parties’ separation, and he had never revoked his permission for her to use his email account and password. He argued that the emails were stolen from him without his permission and that his wife, by virtue of her knowledge of computers, was capable of breaking into his account. He asserted that he had never given her permission to access his email (even while they were married), and that regardless, the start of an action for divorce should constitute an implied revocation of authority to access a spouse’s email.
Outcome: The court found the evidence to be admissible because the wife did not “intercept” husband’s emails under the rule. The emails were not in transit when she had obtained them, but rather, they were stored in her husband’s email account. The court’s review of the statute, the legislative history and the purpose—to prohibit individuals from intercepting communication going from one person to another—the wife’s retrieval of information from a computer did not fall within the strictures of the statute.
Special Notes: The court found the emails admissible at trial only as long as they did not violate the attorney-client privilege.
2) In the Matter of Harry R. v. Esther R., 510 N.Y.S.2d 792 (N.Y. Fam. Ct. 1986)
Procedural Posture: Father in custody battle with his ex-wife over their two children sought to introduce in court recordings of his telephone calls with his children, and the mother objected.
Law: N.Y. Penal Law § 250.05
Facts: Parents were in a custody battle over their children following their divorce. The father sought to modify the existing order for visitation, and in so doing, sought to introduce as evidence recordings of his conversations with his children, which were made without his children’s knowledge or consent. The mother objected, and the court considered whether, among other things, the evidence constituted illegal eavesdropping.
Outcome: The court held that the recordings were not “illegal eavesdropping” under the New York statute because the conversations were recorded by the father “as either the sender or receiver of these communications.”1 Nevertheless, the court deemed the evidence inadmissible because the recordings violated the confidence and trust between the father and his children: “These children, like any other children, are entitled to feel that they may communicate freely with their parents without fear that those communications will be recorded and revealed later. The court cannot prevent Mr. R from recording these conversations. But it can preclude their use in this proceeding, although otherwise admissible, to protect the spirit of trust and confidence that needs to exist between child and parent in order for the children’s emotional health to be safeguarded.”2
d. Practice Pointers
The key to establishing a violation of the eavesdropping statute will be the ability of the plaintiff to establish an interception.