Thomas M. Durkin
A man who alleges his estranged wife secretly forwarded his e-mails to her e-mail account does not have a case under the Wiretap Act, a federal judge has ruled.
In a written opinion, U.S. District Judge Thomas M. Durkin threw out the lawsuit Barry Jay Epstein filed against his wife and her divorce attorney.
The Electronic Communications Privacy Act amended the Wiretap Act in 1986 to prohibit the contemporaneous transmission and interception of e-mails and other electronic communications, Durkin wrote.
The e-mails allegedly intercepted by Epstein's wife, he wrote, did not get forwarded to her until hours or even days after they were originally sent to Epstein.
This time gap means Paula Epstein's alleged interception of the e-mails "was not 'contemporaneous' under any reasonable definition of that word" with their transmission, Durkin wrote.
For the same reason, he wrote, Barry Epstein has no claim under the Wiretap Act against his wife's attorney, Jay A. Frank of Aronberg, Goldgehn, Davis & Garmisa.
Paula Epstein, who now lives in Glenview, is a librarian.
Barry Epstein is a financial reporting expert and litigation consultant with Russell Novak & Company LLP.
In June 2007, Barry alleges, his wife accessed his computer without his permission and created a "rule" that caused his work and personal e-mails to be automatically forwarded to her own account.
Paula received his e-mails until March 2012, Epstein alleges.
By then, he says, she had filed for dissolution of marriage in Cook County Circuit Court. In re the Marriage of Paula Epstein v. Barry Epstein, 2011 D 005245.
Frank asked Paula to give him a printout of his e-mails, Barry alleges, to use in the divorce proceeding.
Barry alleges his wife and Frank violated the Wiretap Act by unlawfully disclosing and using his e-mails.
He also alleges his wife violated the Wiretap Act by unlawfully intercepting his e-mails and that she violated Illinois law by invading his privacy.
In his opinion, Durkin noted that the Wiretap Act does not expressly state that the interception of a communication — electronic or otherwise — must be contemporaneous with its transmission in order to be unlawful.
"But courts reasoned that the requirement best effectuated Congress' apparent intent to bar individuals from using devices to acquire private communications," he wrote, citing United States v. Turk, 526 F.2d 654 (5th Cir. 1976),
Congress "did not disturb the prevailing judicial interpretation of 'interception,' " Durkin wrote, when it amended the Wiretap Act to cover electronic communications.
Since then, he continued, citing cases that included Fraser v. Nationwide Mutual Insurance Co., 352 F.3d 107 (3d Cir. 2003), and Steve Jackson Games Inc. v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994), every federal appeals court that has addressed the matter has held the interception of a communication must be contemporaneous with its transmission.
Durkin conceded the Chicago-based 7th U.S. Circuit Court of Appeals has not ruled on the issue.
But the court in United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010), "suggests" it may reach the same conclusion in the appropriate case, he wrote.
Because Barry has not alleged an interception under the Wiretap Act, Durkin wrote, his counts accusing Paula and her lawyer of unlawfully disclosing his e-mails also cannot stand.
Barry's claim against Frank would fail anyway because he cannot show that he was damaged when Frank allegedly showed the e-mails to Barry's divorce lawyer, Durkin wrote.
He issued his opinion Monday in Barry Epstein v. Paula Epstein, et al., No. 14 C 8431.
Barry is represented by Nejla K. Lane of Lane Legal Services P.C.
Stephen K. Le Brocq, another firm attorney representing him, said his client will ask for permission to file an amended complaint.
Even if Barry's allegations do not state a violation of the Wiretap Act, Le Brocq said, they do state a violation of the Stored Communications Act.
Paula is represented by Scott A. Schaefers of Brotschul, Potts LLC, who declined to comment other than saying he and his client are pleased with the ruling.
Frank is represented by Norman J. Barry Jr. of Donohue, Brown, Mathewson & Smyth LLC. Neither could be reached for comment.