Anonymous v. Anonymous
558 F.2d 677
In the United States Court of Appeals for the Second Circuit
Case Number 743, Docket 76-7555
Before Circuit Judge Moore, Circuit Judge Smith, and Circuit Judge Feinberg
Decided on July 20, 1977

Relevancy of the Case: Consideration of interspousal wiretapping as a violation of the federal wiretapping statute

Statutes and Provisions Involved

• The Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520

Relevant Facts of the Case

• The appellant (wife) and the appellee (husband) separated in 1972 due to the wife’s unstable mental condition. Their two children were in the husband’s custody. However, in late 1973, the wife abducted their daughter and took her to Florida.
• After her arrest, the Family Court issued an order directing the wife to refrain from using foul and abusive language over the telephone to her husband and children.
• After their divorce in 1974, their daughter’s custody was given to the wife.
• After their divorce, the wife brought this action before the District Court. She claimed that in the two years preceding the divorce, the husband taped her calls with her daughter, who was in the husband’s exclusive custody during these two years.
• The husband had brought an automatic telephone answering machine, which had become popular then. This machine recorded the caller’s voice for 45 seconds, after which it stopped recording.
• Also, he instructed his son to turn on the record button if the caller was his mother. This enabled the machine to record the conversations beyond 45 seconds.
• As a result, the husband could hear the recordings of the wife’s calls during office hours.

Prominent Arguments by the Counsels

• The appellant’s counsel argued that the appellee intended to use these recordings against her in a custody fight.
• The appellee’s counsel contended that he did not violate the statute because his daughter consented to his interception of her telephone conversation with her mother. If his daughter lacked capacity, he, as her lawful guardian, consented on her behalf.

Opinion of the Bench

• There would be no prohibition on the husband’s activity if he only listened to his wife’s and daughter’s telephone conversation. This exception is given explicitly in Section 2510(5)(a)(i).
• This is purely a domestic conflict between a wife and her former husband. The court did not condone the husband’s activity in this case, nor did it suggest that a plaintiff could never recover damages from their partner in such a case. However, the facts of this case do not rise to the level of a violation of that statute.

Final Decision

• The court dismissed the appeal.