White v. White, 344 N.J. Super. 211 (Ch. Div. 2001) (May 31, 2001; ISSENMAN, J.S.C.):

The New Jersey Wiretap Act, N.J.S.A. 2A:156A-1 to 34 [the "Act"], applies when one spouse illegally records the communications of the other spouse. Scott v. Scott, 277 N.J.Super. 601 (Ch. Div. 1994); M.G. v. J.C., 254 N.J.Super. 470 (Ch. Div. 1991).

The M.G. logic applicable to spousal wiretapping is equally applicable to spousal electronic communications.

The Act provides:

A person is guilty of a crime of the fourth degree if he
(1) knowingly accesses without authorization a facility through which an electronic communication service is provided or exceeds an authorization to access that facility, and
(2) thereby obtains, alters, or prevents authorized access to a wire or electronic communication while the communication is in electronic storage.

[N.J.S.A. 2A:156A-27(a).]

At first blush, it would appear that accessing electronic communications in electronic storage without authorization is a violation of the Act. But, electronic storage as used in the Act means:

(1) Any temporary, immediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
(2) Any storage of such communication by an electronic communication service for purpose of backup protection of the communication…

[N.J.S.A. 2A:156A-1(q).]

The Act was not meant to extend to e-mail retrieved by the recipient and then stored. It protects only those electronic communications which are in the course of transmission or are backup to that course of transmission. Fraser v. Nationwide Mutual Ins. Co., 135 F. Supp.2d 623, 637 (E.D. Pa. 2001).

It has been held that “without authorization” means using a computer from which one has been prohibited, or using another’s password or code without permission. Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. Supp.2d 817 (E.D. Mich. 2000).

Where a party “consents to another’s access to its computer network, it cannot claim that such access was unauthorized.” Id. at 821.

As to the meaning of an “intercept, “the treatment of messages in “electronic storage” is not governed by the restrictions on “interception.” “Congress did not intend for `intercept’ to apply to `electronic storage’”. Steve Jackson Games Inc. v. United States Secret Service, 36 F.3d 457, 462 (5th Cir. 1994).

An “electronic communication,” by definition, cannot be “intercepted” when it is in “electronic storage,” because only “communications” can be “intercepted,” and, … the “electronic storage” of an “electronic communication” is by definition not part of the communication. [Bohach v. City of Reno, 932 F.Supp. 1232, 1236 (D.Nev. 1996).]

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

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