A Possible Scenario
A wife suspects her husband of cheating on her. She’s had her suspicions for several weeks, or months, or years and finally she decides to find out if her suspicions are correct. The method and manner that she decides to employ will be different from other spouses in this situation. Perhaps she’ll install a second phone in a secret location in the house that he won’t know about and place a recording device onto it so that when someone calls the line the secret phone will automatically pick up and the device will begin recording. Now that the calls are recorded she goes to play back the tape one day when he’s not around and her worst fears are realized: her husband is cheating on her. She then decides to share the conversations on the tape to other people such as her family, his family and maybe even the mistress.

Based on what she’s heard she now decides to file for a divorce citing marital infidelity. She knows that divorces are expensive and draining but she cannot bear to live one minute longer with a man that has violated her trust. In some situations there may be children involved and aside from the usual divorce proceedings there is a child custody battle that needs to be fought.

What is the value of the tape recorded conversations? Are they admissible into evidence in a divorce proceeding? Is the mere fact that she possesses these recordings without the consent of her husband illegal? What does California and Federal law have to say regarding spousal eavesdropping?

The Status of Interspousal Wiretapping in California
In California, interspousal wiretapping via use of electronic devices such as tape recorders is illegal and its fruits inadmissible by statute. The California Family Code states:

(a) Evidence collected by eavesdropping in violation of Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1 of the Penal code is inadmissible. (b) If it appears that a violation described in subdivision (a) exists, the court may refer the matter to the proper authority for investigation and prosecution. (Fam. Code, sec. 2022.)

The Penal Code reference from section 2022 covers a range of situations regarding situations where wiretapping is excused or unexcused. For example, Penal Code section 633.5 excuses wiretapping when it relates to law enforcement officials tapping a phone to investigate crimes regarding extortion, kidnapping, bribery, or a felony involving violence to another person. Unexcused examples of tapping a phone amount to an invasion of privacy and are punishable by fine and imprisonment:

  1. Penal Code section 631 (Wiretapping): “Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically…or otherwise with any…telephone wire, line, cable or instrument…is punishable by a fine not exceeding [$2,500] dollars, or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison, or by both a fine and imprisonment in the county jail or in the state prison.”  (UPDATE: Section 631 has been preempted by federal law.  According to Bunnell v. MPAA (C.D. Cal. 2007) 567 F. Supp.2d 1148, all claims under section 631 are preempted by a federal law known as the Electronic Communications Privacy Act (18 U.S.C. section 2518(10)(c)).  More info forthcoming. )
  2. Penal Code section 632 (Recording): Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding [$2,500], or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

On top of a statutory violation, a wronged spouse who has been the victim of illegal wiretapping by another spouse can seek a civil action under 637.2:

Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts: (1) Five thousand dollars ($5,000); (2) Three times the amount of actual damages, if any, sustained by the plaintiff. The wronged spouse may also seek an injunction under the same statute against any future violation.

A Federal Exception?
While California relies on the statutory language of the Penal Code to define the limits of acceptable wiretapping, Congress has communicated its law through Title 18 of the United States Code sections 2510 through 2520. For example, relevant portions of section 2511 states:

(1)Except as otherwise specifically provided in this chapter any person who:
(a) intentionally intercepts…any wire, oral, or electronic communication;
(b) intentionally uses…any electronic, mechanical, or other device to intercept any oral communication when (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication…
(c) intentionally discloses…to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.
(e) …shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5). (The full text of the statute may be found here.)

In cases where plaintiffs are filing a cause of action that state the defendant violated this section they are allowed to seek recovery under 18 U.S.C. 2520. Federal courts, however, have twisted themselves into knots into interpreting whether §2511 applies to cases concerning interspousal wiretapping. For example, federal courts in the fourth, sixth and eleventh circuits (portions of the East Coast, Midwest, and South) have held that the intent of Congress was to involve 18 U.S.C. 2510 through 2520 in interspousal wiretapping and considers it a violation of those laws whenever a spouse eavesdrops on another. Other jurisdictions, however, have held the opposite: Congress did not intend federal law to involve itself into the affairs of interspousal wiretapping and therefore spouses can eavesdrop on their spouses without violating federal law. Among those jurisdictions was the Central District of California who, in 1988, decided that:

…it is unlikely that Congress intended [18 U.S.C. 2510 through 2520] to extend to such personal acts conducted within the marital home. Application of federal law to an interspousal domestic conflict would run counter to the tradition of leaving such matters to the realm of state courts. (Perfit v. Perfit (C.D.Cal. 1988) 693 F.Supp. 851, 856.)

While the Perfit court ruled that it may not be a violation of federal law for a spouse to electronically eavesdrop on another spouse, it held that it may be a violation of a particular state’s law. In addition, in 1992, the Supreme Court of California declared:

No exception [to 18 U.S.C. 2510 through 2520] is specifically provided for family members or for interspousal or “domestic” wiretaps. Thus, the government essentially asks this court to create a new, unenumerated exception to the Act for interspousal wiretapping. … the history of Title III reveals an unmistakable congressional intent to prohibit all unauthorized electronic surveillance, including domestic wiretapping. (People v. Otto (1992) 2 Cal.4th 1088, 1099-1100 [9 Cal.Rptr.2d 596, 831 P.2d 1178].)

California’s position regarding interspousal wiretapping within the realm of federal law is aligned with the fourth, sixth and eleventh circuits despite an implied exception given in Perfit. What all of this means is that suppose a spouse electronically eavesdrops on the other and the wronged spouse decides to sue the other for invasion of privacy or to suppress the recorded evidence in a divorce proceeding. In addition to barring the recorded evidence in a divorce proceeding, the wronged spouse can sue under violation of the California Penal Code as well as 18 U.S.C. 2511 in a California state court. Prior to 1992, the sued spouse could raise a defense against federal violation citing Perfit in that her eavesdropping was excused because it did not fall under Congressional intent. After the Otto decision, however, anyone raising such a defense is barred from doing so.

Theoretically, the sued spouse could have the case removed to federal court in California where federal courts would not be bound by the Otto decision and continue to raise the Perfit defense to have the wiretapping excused (though there is still California Penal Code violations to contend with). I believe this would not hold up with the court because while the Perfit court allowed the eavesdropping to go unpunished, it did not ignore the fact that matters involving interspousal wiretapping were within “the realm of state courts.” The federal court hearing the case on removal could very easily kick the case back into state court on these grounds.

Parting Words
Interspousal wiretapping is seemingly illegal regardless of whether one decides to pursue a remedy through the California Penal Code or the United States Code, however enterprising lawyers may have yet to find some wiggle room in pleading a valid cause of action in federal court. I suspect however, that whatever room there may be to argue is severely limited and is most likely doomed to fail. Their arguments would have to revolve around an invasion of privacy argument to try to convince a federal court that they should interfere and spend court time, taxpayer money, and resources in what is essentially a domestic dispute. Given that federal courts are courts of limited jurisdiction and historically have always declined to hear domestic dispute cases, the prospect of pleading such a case described above is perilous.

If a spouse decides to eavesdrop on the other then they do so at their own risk. The best advice in a situation where a spouse suspects the other of marital infidelity or any other acts that might make the suspecting spouse wary of the integrity of their marriage is not to take illegal action. DO NOT TAP THE PHONE! There are other solutions to this kind of problem such as seeking marriage counseling or if necessary, seek the advice of an attorney. Most attorneys will give potential clients a free consultation to hear the merits of their case and to suggest possible courses of action.