Admissibility of Evidence - Evidence Obtained By Spyware - CPLR 4506
Spyware is a type of software that can be installed on computers which collects small pieces of information about users without their knowledge that may send the information to another entity or person. Typically, spyware is secretly installed on the user's personal computer. Sometimes, however, spyware such as keyloggers are installed by the owner of a computer on purpose in order to secretly monitor other users’ habits and sites that have been visited.[1]
When spouses reside together, it is easy for one party to install spyware on the other spouse's computer or the “family computer”. If the parties live apart spyware can be remotely installed. For example, the husband might send an electronic greeting card to the wife saying how he sorry is for the pain he’s caused her. He attaches the card to an e-mail that says, “Honey, I’m so sorry for all the pain I’ve caused – the attached card helps me to express my real feelings”. Whether she loves him or hates him, she’s going to want to see the card so she opens the attachment. When she does this the spyware will download (invisibly) along with the greeting card and install itself. [2]
CPLR 4506, which prohibits the admission of eavesdropping evidence, only applies to the contents of an overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by Penal Law 250.05. That section provides that 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.
There is no law in New York State that prohibits the admission into evidence of documents obtained by the use of spyware by a spouse or the retrieval of instant messages, text messages, or emails stored on a computer which does not violate Penal Law 250.05.
It has been held that where emails are not 'intercepted while in transit,' but merely 'retrieved' from a computer by a party who knew the password, the e-mails are admissible at trial. [3]
The computer related crimes of interest to the matrimonial and family law practitioner are Penal Law § 156.05, Unauthorized Use of a Computer, and Penal Law § 156.10 Computer trespass. They appear to be similar to the longstanding crime in New York of Tampering with Private Communications in Penal Law 250.25.[4]
[1] See http://en.wikipedia.org/wiki/Spyware (last accessed May 30, 2017). The use of “spyware” and other equipment is discussed at length in Crocker C. v. Anne R., 49 Misc.3d 1202(A), 2015 N.Y. Slip Op. 51365(U) (Sup.Ct., 2015)] and Crocker C. v. Anne R., 2016 WL 5345378, 2016 N.Y. Slip Op. 51330(U) (N.Y. Sup. Ct. Sept. 19, 2016).
[2] See Nelson & Simek, “Electronic Evidence for Family Law Practitioners: The Growing Phenomenon of Spyware” (downloaded from http://www.senseient.com on January 9, 2011).
[3] Gurevich v. Gurevich, 24 Misc.3d 808, 886 N.Y.S.2d 558 (Sup. Ct. 2009); In Moore v. Moore, N.Y.L.J., August 14, 2008, at 26, col. 1 [Sup. Ct., New York County] the husband sought to suppress material from the hard drive of a laptop computer, used by the family members, that was found by the wife in the trunk of her husband's car. The court held that Penal Law section 250.05 did not apply to the facts presented because “[i]n accessing the disputed files, plaintiff did not intercept, overhear or access electronic communications.” The communication was saved to the hard drive by the husband and the wife's “subsequent access to that material downloaded and saved to the hard drive of the computer was not the result of an intercepted communication and does not constitute a violation of Penal Law section 250.05”
In Boudakian v. Boudakian, N.Y.L.J., December 26, 2008, at 21, col. 3 [Sup. Ct., Queens County 2008] the husband sought suppression of information obtained by the wife from the parties' laptop computer. The court following the reasoning enunciated in Moore held that “[e]avesdropping does not apply since the communication at issue occurred on prior occasions and the wife's subsequent access to that material on the hard drive was not the result of an intercepted communication and does not constitute a violation of Penal Law section 250.05.”
[4] Penal Law §250.25 Tampering with private communications.
A person is guilty of tampering with private communications when: 1. Knowing that he does not have the consent of the sender or receiver, he opens or reads a sealed letter or other sealed private communication; or …Tampering with private communications is a class B misdemeanor.
Spyware is a type of software that can be installed on computers which collects small pieces of information about users without their knowledge that may send the information to another entity or person. Typically, spyware is secretly installed on the user's personal computer. Sometimes, however, spyware such as keyloggers are installed by the owner of a computer on purpose in order to secretly monitor other users’ habits and sites that have been visited.[1]
When spouses reside together, it is easy for one party to install spyware on the other spouse's computer or the “family computer”. If the parties live apart spyware can be remotely installed. For example, the husband might send an electronic greeting card to the wife saying how he sorry is for the pain he’s caused her. He attaches the card to an e-mail that says, “Honey, I’m so sorry for all the pain I’ve caused – the attached card helps me to express my real feelings”. Whether she loves him or hates him, she’s going to want to see the card so she opens the attachment. When she does this the spyware will download (invisibly) along with the greeting card and install itself. [2]
CPLR 4506, which prohibits the admission of eavesdropping evidence, only applies to the contents of an overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by Penal Law 250.05. That section provides that 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.
There is no law in New York State that prohibits the admission into evidence of documents obtained by the use of spyware by a spouse or the retrieval of instant messages, text messages, or emails stored on a computer which does not violate Penal Law 250.05.
It has been held that where emails are not 'intercepted while in transit,' but merely 'retrieved' from a computer by a party who knew the password, the e-mails are admissible at trial. [3]
The computer related crimes of interest to the matrimonial and family law practitioner are Penal Law § 156.05, Unauthorized Use of a Computer, and Penal Law § 156.10 Computer trespass. They appear to be similar to the longstanding crime in New York of Tampering with Private Communications in Penal Law 250.25.[4]
[1] See http://en.wikipedia.org/wiki/Spyware (last accessed May 30, 2017). The use of “spyware” and other equipment is discussed at length in Crocker C. v. Anne R., 49 Misc.3d 1202(A), 2015 N.Y. Slip Op. 51365(U) (Sup.Ct., 2015)] and Crocker C. v. Anne R., 2016 WL 5345378, 2016 N.Y. Slip Op. 51330(U) (N.Y. Sup. Ct. Sept. 19, 2016).
[2] See Nelson & Simek, “Electronic Evidence for Family Law Practitioners: The Growing Phenomenon of Spyware” (downloaded from http://www.senseient.com on January 9, 2011).
[3] Gurevich v. Gurevich, 24 Misc.3d 808, 886 N.Y.S.2d 558 (Sup. Ct. 2009); In Moore v. Moore, N.Y.L.J., August 14, 2008, at 26, col. 1 [Sup. Ct., New York County] the husband sought to suppress material from the hard drive of a laptop computer, used by the family members, that was found by the wife in the trunk of her husband's car. The court held that Penal Law section 250.05 did not apply to the facts presented because “[i]n accessing the disputed files, plaintiff did not intercept, overhear or access electronic communications.” The communication was saved to the hard drive by the husband and the wife's “subsequent access to that material downloaded and saved to the hard drive of the computer was not the result of an intercepted communication and does not constitute a violation of Penal Law section 250.05”
In Boudakian v. Boudakian, N.Y.L.J., December 26, 2008, at 21, col. 3 [Sup. Ct., Queens County 2008] the husband sought suppression of information obtained by the wife from the parties' laptop computer. The court following the reasoning enunciated in Moore held that “[e]avesdropping does not apply since the communication at issue occurred on prior occasions and the wife's subsequent access to that material on the hard drive was not the result of an intercepted communication and does not constitute a violation of Penal Law section 250.05.”
[4] Penal Law §250.25 Tampering with private communications.
A person is guilty of tampering with private communications when: 1. Knowing that he does not have the consent of the sender or receiver, he opens or reads a sealed letter or other sealed private communication; or …Tampering with private communications is a class B misdemeanor.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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