All divorce lawyers have had the experience of having a client walk into the office stating that they have absolute proof of their spouse's misconduct. When queried as to the manner in which they obtained the proof, the clients often advise that the proof was obtained through the unauthorized recording of their spouse's telephone conversation with a third party. The clients must be advised that they may have violated State or Federal Wiretap Statutes, which may expose them to criminal penalties, as well as severe civil penalties.

Federal and state wiretap statutes have been implemented to protect against invasions of privacy. In the context of family law cases, this issue comes up with regard to civil liability and damages, and also with the use of taped conversations in divorce and custody trials. In the majority of states, the unauthorized taping of a spouses' conversation could lead to civil damages and possibly criminal liability. It is unlawful to tape a spouse's conversation, unless it is consented to or it is specifically within one of the enumerated exceptions of the state or federal statute.

New Jersey has adopted a more restrictive wiretap statute than the Federal Act. New Jersey's Wiretap Statute defines a "wire communication to include "any electronic storage of such communication, and the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit". This is the opposite of the Federal Statute, which exempts cordless phones. The addition of electronic storage broadens the New Jersey Act tremendously.

Often a suspicious spouse will seize their spouse's pager and scan the memory for telephone numbers, which may lead to proof of infidelity. Is the retrieval of stored telephone numbers on a pager a violation of the wiretap act? On a Federal level, the answer would appear to be no. The New Jersey Wiretap Act is more stringent and defines "wire communication" as including "electronic storage of such communication".

Can you retrieve e-mail message and records of chat room activity without violating the Wiretap Act? The Federal Act defines an "electronic communication" as any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system that affects interstate or foreign commerce, but does not include:

Under the Act an "aural transfer" is a transfer containing a human voice at any point between and including the point of origin and the point of reception. Whereas, an "electronic communication" is defined as:

The Act defines "electronic storage" as any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and any storage of such communication by an electronic communication service for purposes of back-up protection of such communication. E-mail is electronic storage and not electronic transmission, that congress did not intend for "intercept" to apply to "electronic communications" when the communications are in "electronic storage". However, the New Jersey Act specifically includes electronic storage of wire communications. Improper retrieval of e-mail could constitute a violation of a wiretapping statute.

If the messages that are retrieved by one spouse were stored on a home computer that both parties have equal access, the client may or may not be in violation of the wiretapping statute. However, if the electronic communication is retrieved by accessing the other party's on-line account, the person may be subject to criminal and civil penalties.

With the current prevalence of Internet sex and the resulting divorce litigation, wiretapping violations are prevalent in divorce cases. A spouse who is attempting to prove their partner's infidelity by retrieving messages from hard drives, Internet services, recycle bins, or other areas of storage, could clearly be in violation of a state statute, unless there is authorization.