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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Beverly Ann O'Brien v. James Kevin O'Brien

Case No. 5D03-3484, 899 s.2d 1133 (Dist. Crt. App., Fla., February 11, 2005)

Court holds that the unauthorized use of a spyware program to capture screen shots of a husband's online communications violates Florida's Security of Communications Act, modeled after the Federal Wiretap Act, 18 U.S.C. Section 2501, et seq.  An intermediate Florida appellate court accordingly affirms the trial court decision to bar the wife from introducing these screen shots into evidence in her divorce proceeding with her husband.

Without authorization of her husband, a wife installed a spyware program known as Spector on a computer he used.  The program took frequent screen shots of his computer activity, and thereby captured online chat conversations, instant messages and emails sent and received by the husband, including, apparently, his private online chats with another woman.  These screen shots were copied and stored in a file on the husband's computer.  The trial court found the communications had been illegally intercepted in violation of the Act, and refused to admit them into evidence in the parties' divorce.  The intermediate appellate court affirmed.

Florida's Security of Communications Act, Section 934.03(1)(a), makes it a crime to "intentionally intercepts  … any wire, oral or electronic communication …".  The statute defines "electronic communications" as "any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects intrastate, interstate or foreign commerce …" Section 934.02(12).  The statute defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic or oral communication through use of any electronic, mechanical or other device."

The Court held that the Spector spyware program "intercepted and copied the electronic communications [at issue] as they were transmitted" and thus intercepted them in violation of the Act.  In reaching this result, the Court rejected the wife's argument that no interception occurred, because the communications were necessarily stored on the husband's computer before being displayed on his computer screen.  Said the Court:

The Wife argues that the communications were in fact stored before acquisition because once the text image became visible on the screen, the communication was no longer in transit and, therefore, not subject to intercept.  We disagree.  We do not believe that this evanescent time period is sufficient to transform acquisition of the communications from a contemporaneous interception to retrieval from electronic storage.

The Court went on to uphold the trial court's refusal to admit this evidence.  Said the Court:

Because the evidence was illegally obtained, we conclude the trial court did not abuse its discretion in refusing to admit it.

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