Beverly O’Brien thought her husband, James, had another woman in his life. So she installed some software on his computer that would secretly record his online activities. Her worst fears were confirmed when she caught him going into a private online chat room with another woman, where the two engaged in some extremely private conversations.

But when she tried to introduce the recorded conversations as evidence in her divorce proceedings, she ran into a roadblock: Florida’s anti-wiretapping law. The statute makes it a crime to intercept electronic communications without authorization, and a Florida appellate court ruled that Beverly O’Brien’s actions, though they did not involve the typical recording of telephone conversations, violated this statute.

....The issue goes far beyond Florida. The statute is modeled on the Federal Wiretap Act, 18 U.S.C. § 2510, et seq., which prohibits the same type of online snooping anywhere in the country. ....The appellate court, however, found there was "a rather fine distinction" between intercepting an electronic communication while it was en route and copying a stored communication. And the court wanted help in drawing the distinction in this case.

The Court looked to federal law in resolving the issue.

"The federal courts have consistently held that electronic communications, in order to be intercepted, must be acquired contemporaneously with transmission, and that electronic communications are not intercepted within the meaning of the Federal Wiretap Act if they are retrieved from storage."

Nevertheless, the Florida court found the messages in this case were still basically in transit when they were copied because there was only an "evanescent time period" between the time the communications were in transit and when they were stored (and copied) in the computer.