Question: I have suspected for several months that my wife was seeing another man because she was preoccupied and distant toward me and our children. I hired detectives with no luck. Then I found and installed software on our household computer (it had been advertised on the Internet) to keep records of what computer users did online. As a result, I found that my wife was visiting chat rooms and having explicit, sexual discussions with several men, one of whom is our neighbor.

The software revealed where she was planning to meet these men and when. It turns out that the meetings were mostly on weekdays, right after she dropped our children off at school. So, this time with advance information, I again hired the detectives, and they caught her in several compromising situations at a number of different motels with three different men.

I was given temporary custody of our two young children, and she was removed from our home. My lawyer has warned me, however, that if my wife found out how I had gotten the information to catch her, there could be repercussions, including my not being able to use the proof at a later hearing. How can this be? Don’t I have the absolute right to monitor the use of the family computer?

Answer: Your lawyer may be only partially correct. When, through the discovery process, your wife learns that the information used by you, your detectives, and your lawyer came as a result of you intercepting her communications with others on the computer, you can bet that her attorney will assert that not only you, but also your detectives and your lawyer, violated the federal wiretap statute and, if your legislature has passed one, your state anti-wiretapping law.

The federal law – and many state laws enacted in this area – makes it illegal for an individual to not only secretly intercept, but also to disseminate, electronic communications of others without prior authorization. However, based on our limited research, it appears that the interception of chat and electronic conversations will be criminal if the interception took place while the messages are “in transit”. As we understand it, this means that once an electronic message has been received by a computer, it may be secretly monitored and recorded because the software is not “intercepting” the electronic message while it is traveling to and from the participants. Instead, it is capturing the words as the computer memory makes continuing copies on the monitor. Therefore, it appears there will not be a violation of the law because the information was already in computer memory and was not in the process of being transferred.

However, even though it appears that to be guilty of violating the federal wiretap law the interception of electronic communications must take place at the time of the transmission, a recent decision by the Florida courts has expanded the definition of “interception” under Florida wiretap law to include retrieving the information from storage. The rationale: The time lapse between transit and storage is fleeting.

Therefore, the answer to your dilemma may not be as cut and dried as one might think. You and your lawyer might be barred from disclosing the content of these electronic “conversations”, and you and others could be facing an indictment.

SoloFact: Due to constantly changing laws in this area, it is a bad idea to freelance your own investigation and wind up behind the eight ball. Always check with your lawyer before you engage in any efforts to intercept oral or electronic transmissions.