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July 23, 2012
Ex-Spouse Hit With 20K in Damages for Email Eavesdropping – Klumb v. Goan
[Post by Venkat Balasubramani]
Klumb v. Goan, 09-cv-115 (E.D. Tenn.; July 19, 2012)
Klumb, described by the court as “a wealthy man,” met and married Crystal Goan, a law student who later became a lawyer. As the court describes it, the relationship was “fraught with concerns of fidelity from the very beginning.” Before the two were married, Goan purchased Spectorsoft’s eBlaster product. She surreptitiously installed copies of eBlaster on officer computers that Klumb regularly used. As the court notes, eBlaster is a software program “that can perform various spyware functions.”
Goan used eBlaster to keep track of Klumb’s emails. She also intercepted three emails sent to Klumb and altered the emails to make it look like “[the sender] and [Klumb] were having an affair.” Apparently a finding of infidelity altered the split of property between the parties under the prenuptial agreement in place between the parties and under an agreed order entered in the divorce case that was initiated when the marriage soured. (As a sidenote, the court finds that after Klumb and Goan signed the agreed order, “defendant substituted one or more pages of the agreed order with new pages which included paragraph 5 [the part of the agreement that altered the property split upon a finding of infidelity].” While the installation of eBlaster and email snooping was bad enough, the court's discussion about the various versions of the agreed order and the prenuptial agreement does not paint Goan in a very positive light.)
The court takes into account the overall context of the dispute, and after noting that focusing a “wide lens” on the dispute will result in the “regrettable and unavoidable airing of dirty laundry,” recounts the factual background and testimony in painful detail.
As far as the legal issues, the court does not have any trouble finding that Goan’s interception of Klumb’s email violates the federal Wiretap Act and its Tennessee counterpart. Goan argued that the software did not intercept Klumb’s emails while they were in transit, but citing to US v. Szymuszkiewicz the court says that interception contemporaneous with receipt is interception just the same. The court rejects Goan’s defenses based on consent and based on the divorce settlement between the parties.
The court awards statutory damages in the amount of $10,000. Klumb asked for a greater statutory amount--a separate damage award for each instance in which Goan installed eBlaster on Klumb’s computers--but the court says that a plaintiff can only get more than the $10,000 statutory amount if “violations . . . occurred on more than one hundred separate days.” The court also tacks on $10,000 in punitive damages based on Goan’s “egregious conduct,” and awards Klumb fees and costs.
There’s not a whole lot to say about this dispute. Spouses (and girlfriends/boyfriends) resist the temptation to eavesdrop on email. Just don’t do it! It goes without saying that if you’re a lawyer you should pay particular attention to this admonition. Also, the scenarios in which use of software such as eBlaster is legally in the clear are probably much narrower than you think. It’s worth consulting with a lawyer before deploying this software (although in this situation it probably would not have helped, given that Goan was herself a lawyer).
A final note is that we’ve seen a few cases of email eavesdropping where liability was established but the damage awards ended up being less than blockbuster (Pure Power Boot Camp v. Warrior Fitness Boot Camp; Van Alstyne v. Electronic Scriptorium; see also Hillstone Restaurant Group v. Pietrylo).
Keylogger Software Company Not Liable for Eavesdropping by Ex-spouse -- Hayes v. SpectorSoft
Ex-Employees Awarded $4,000 for Email Snooping by Employer -- Pure Power Boot Camp v. Warrior Fitness Boot Camp
Court: Husband's Access of Wife's Email to Obtain Information for Divorce Proceeding is not Outrageous
Minnesota Appeals Court Says Tracking Statute Excludes Use of GPS to Track Jointly Owned Vehicle -- State v. Hormann
NJ Appeals Court: No Privacy Violation When Spouse Uses GPS to Track Vehicle -- Villanova v. Innovative Investigations, Inc.