Even Kate Gosselin Has a Right to Electronic Privacy

On behalf of The Marks Law Firm, L.L.C. posted in Divorce, Evidence, and Private Investigators on Thursday August 29, 2013

In a previous post we discussed the implications of accessing computers, cell phones and other electronic information belonging to your partner or ex-partner, and noted some of the legal pitfalls of trying to gain access to information that you think will give you an edge in litigation.  We gave a general recommendation that such spying likely will lead to civil or criminal liability rather than the outcome you want in family court.

Today we share some proof of that advice, from an unlikely source – one of the most notorious and polarizing reality television stars ever, Kate Gosselin.

This week Kate, former star of a long-running reality show on TLC and still mother of eight children, filed a lawsuit in federal court against her former spouse and the father of those eight children, John Gosselin, and his friend and business partner Robert Hoffman.

Kate alleges that after she and John separated, John illegally gained access to her computer hard drive, to her email accounts, to “cloud” data storage and her cell phone.  For each item or account, Kate states that she alone had the password and the sole right of access.  Kate claims that over a period of time John “hacked” various accounts and computers to remove sensitive and very private information, including diary entries and personal emails.  Subsequently, John and his buddy Robert released these secret tidbits to the tabloids – for a hefty price.  Further, Robert went so far as to produce an unauthorized biography of Kate, which was highly unflattering and, according to Kate, untrue and painted her in a false light or even defamed her.

While one can question the timing of the lawsuit (Kate apparently is near bankruptcy according to a recent feature in People), the claims, if true, have merit.

In her first count, Kate seeks relief under the Computer Fraud and Abuse Act (CFAA), a federal statute that makes it illegal to access a computer without authorization, and allows a victim of illegal access to sue for civil damages.

In her second count, Kate seeks relief under the Electronic Communications Protection Act (ECPA), a federal law that, as we have previously discussed, prohibits intercepting electronic communications and allows relief in the form of civil damages.

In her third count, Kate claims violation of the Stored Communications Act (SCA), a federal statute making it illegal to have unauthorized access to stored data, which includes anything from a private server to hacking Google.

Her remaining counts involve state law issues – violations of the Pennsylvania Wiretapping and Electronic Surveillance Act, identity theft, conspiracy and invasion of privacy.

As you can see, unlawfully obtaining information about your spouse, and doing something with it, can expose you to incredible legal liability.

Of course, just because Kate filed this suit does not mean what she claimed happened.  John may have not accessed the accounts or, if he did, he may have had an ownership interest in the account (though unlikely).  Bottom line – if John did access these accounts, the law offers virtually no defense beyond authorized user (and a statute of limitations which could have a role in some of the allegations made by Kate).  Given that he and Kate had separated and initiated a highly public and ugly divorce, it seems quite a stretch to believe that Kate would have allowed John access to her most private email accounts and personal computers and cell phones.

What makes this case unusual beyond the notoriety of the individuals is the widespread dissemination of the information in tabloids and an unauthorized biography.  Even though Kate would be considered a public figure, and frequent fodder for tabloids, illegally gaining information by hacking private accounts protects the most exposed of reality stars – even a Kardashian.  And because the information did reach such a broad audience and paint Kate in such a negative light, the amount of damages would be enormous compared to most other types of hacking cases – money the defendants likely do not have.

So, if Kate cannot collect millions of dollars because the defendants do not have millions of dollars, why sue?  Great question.  Perhaps the defendants have more money than we realize.  Perhaps Kate hopes the lawsuit generates a new round of publicity in a positive way that will bring her more offers to help her feed her large family.  After all, who can understand the mind of a reality television star in the first place?

Regardless of Kate’s intentions, the wonderful lesson today is that even the most overexposed media individuals have a sanctuary around their private emails and computers and cell phones.  And those who would try and break that barrier and invade that privacy could pay a hefty price.

Back in the real world, the Kate v. John suit should stand as a strong warning for those angry partners who want to get the goods on the source of their anger.

If you have questions about hacking and electronic interception of communications in divorce or custody matters, contact us – we can help.