Lawyers sued over client's alleged spyware use

Lawyers sued over client's alleged spyware use

July 27th, 2009 by Monica Mercer in News

PDF: Spyware case

Is spyware legal?

Spyware, a type of computer software used to surreptitiously monitor someone's online activity, can be used legally by parents to monitor a minor child and by employers who inform their employees that their online activity is being watched, attorney and computer forensics expert Sharon D. Nelson says. But there is a legal right to privacy outside those two areas, Ms. Nelson cautioned. Under most state and federal wiretapping laws, it is illegal to "intercept" wire, oral or electronic communications by any means, including with spyware.

A recent lawsuit that called out a local law firm's use of e-mails allegedly obtained with computer spyware is the first of its kind and sparking questions about technology and the law, according to a national expert in computer forensics.

"Typically, what we see is that the victim of spyware will sue the other person who used the spyware. Those cases are common," said attorney Sharon D. Nelson, president of Virginia-based Sensei Enterprises Inc., a company that specializes in computer forensics and legal technology services.

"The case I've been looking for is where the law firm is (sued) because they tried to use evidence that they knew was illegally obtained through electronic interception," she said. "I've never seen this before, but it was logical to assume that at some point, somewhere, this would happen."

Ms. Nelson wrote about the case against Chattanooga law firm Berke, Berke and Berke and three of its partners -- including Democratic state Sen. Andy Berke -- on her blog about electronic evidence when plaintiff Thomas Farrell Hayes first filed it in Hamilton County Circuit Court in late June.

The case has started discussion in other legal forums as well, and defendant Marvin Berke even admitted receiving phone calls about the case.

"I've gotten calls from lawyers all over the country" who have similar questions about the legal aspects of the case, he said last Monday.

Mr. Hayes dropped the $1 million lawsuit against the Berkes last week, but a judge has since granted a motion to add them as defendants in the separate divorce case between Mr. Hayes and his wife, Suzanne Hayes.

The decision essentially keeps the Berkes on the hook to eventually answer allegations that they knew their former client, Ms. Hayes, had illegally obtained her husband's e-mails with spyware and used those e-mails anyway to help litigate their divorce.

Such an action is illegal under Tennessee's state wiretapping laws.

Marvin Berke said last week that he and the law firm did nothing wrong.

"I don't even know what spyware is," Mr. Berke said, adding he has never used it.

But Ms. Nelson said the dispute highlights how a lack of knowledge about the legal use of electronic communications can haunt lawyers.

Lawyers are confronted all the time with e-mails and other electronic evidence their clients give them to aid in litigation, Ms. Nelson said. But a lawyer must now be aware of how the electronic evidence is obtained to avoid possibly getting sued.

"Five years ago, most lawyers didn't know the law at all (with regard to electronic communications)," Ms. Nelson said. "Even today, I would say there's still a very large percentage of lawyers who are not really terribly familiar with the legal limits of spyware. There's not a lot of precedent yet."

Chattanooga labor and employment lawyer John Phillips, who is not involved in the case against the Berkes, said the dispute illustrates a "significant" point.

"Technology is moving at the speed of light. The law, on the other hand, creeps along like a tortoise," Mr. Phillips said. "So it is very difficult to know for sure whether something being done on the Web is legal or not."