## Facts

- In a divorce dispute, Beverly Ann O’Brien installed “Spector” spyware on a computer her husband, James Kevin O’Brien, regularly used, without his knowledge or consent.
- The program repeatedly took screenshots of the computer display during use.
- The screenshots captured the husband’s online chats, instant messages, and emails, including communications with another woman.
- The program saved the images to the hard drive, allowing the wife to later review and print them.
- The wife sought to introduce the printed screenshots in the divorce proceeding.
- The trial court ruled the communications were illegally intercepted under Florida’s Security of Communications Act (Chapter 934, Florida Statutes), excluded them from evidence, and entered a permanent injunction prohibiting the wife from disclosing them to third parties.
- The wife appealed both the exclusion ruling and the injunction.

## Issues

1. Whether the use of spyware that captures contemporaneous screenshots of on-screen chats, instant messages, and emails constitutes an “interception” of “electronic communications” under Florida’s Security of Communications Act.
2. Whether the trial court abused its discretion by excluding the intercepted communications from evidence in the divorce proceeding.
3. Whether the trial court properly entered a permanent injunction prohibiting disclosure of the intercepted communications to third parties.

## Decision

- The District Court of Appeal of Florida, Fifth District affirmed.
- The court held that the spyware’s contemporaneous capture and copying of the husband’s online communications constituted an unlawful interception of electronic communications under Chapter 934.
- The court held the trial court did not abuse its discretion in excluding the communications because they were obtained in violation of the Act.
- The court upheld the permanent injunction barring disclosure of the intercepted communications.
- On rehearing, the court clarified that affirming the evidentiary and injunctive rulings did not amount to a criminal conviction of the wife.

## Legal Principles

- “Electronic communications” under Chapter 934 broadly include online chats, instant messages, and emails transmitted by electronic systems affecting commerce.
- An “intercept” includes non-aural acquisition of the contents of an electronic communication through use of any electronic or mechanical device.
- Contemporaneous acquisition during transmission constitutes interception; an “evanescent” interval in which text appears on a screen does not convert capture into mere retrieval from storage.
- Communications intercepted in violation of Chapter 934 are subject to exclusion from evidence.
- Courts may enjoin dissemination of unlawfully intercepted communications to prevent continued misuse and to enforce statutory privacy protections.

## Conclusion

The appellate court affirmed exclusion and nondisclosure orders where a spouse used spyware to capture and print contemporaneous screenshots of the other spouse’s online communications without consent, holding this conduct was an unlawful interception under Florida’s Security of Communications Act and supporting both evidentiary exclusion and injunctive relief.


O’Brien v. O’Brien, 899 So. 2d 1133 (Fla. Dist. Ct. App. 2005)