Wiretaps by spouses actionable;  Court lets suit proceed

The Atlanta Journal-Constitution
October 18, 2003

By:  Bill Rankin

Sparring spouses can no longer wiretap each other without fear of being sued in federal court.

In an opinion issued Thursday, the 11th U.S. Circuit Court of Appeals in Atlanta overturned a 29-year-old precedent that barred invasion-of-privacy lawsuits by spouses over wiretaps, even though the practice is a crime.

“It’s about time and long overdue,” said Jeffrey B. Bogart, an Atlanta family law and criminal defense attorney. He said he has come across divorces with one spouse wiretapping another to catch an infidelity “more often than I’d like to see.”

Atlanta family law attorney John Mayoue said some studies estimate more than 75 percent of all wiretaps are done in family settings. This includes feuding spouses who try to use taped phone conversations as leverage in divorce disputes.

“I think people in this country should be on notice we do not wiretap, period,” Mayoue said.

In Georgia, wiretapping is a felony with penalties of up to five years in prison and a $10,000 fine.

But Mayoue said prosecutors, more inclined to charge more serious cases involving drugs and violence, rarely get involved in wiretaps in domestic disputes.

“And most husbands and wives candidly think they just can’t get DAs interested in this so they don’t even bother to try,” the attorney said.

Clayton County District Attorney Bob Keller said he could not recall such a prosecution during his tenure. He said local prosecutors typically get involved in domestic disputes only when there is physical violence or threats of violence.

The 11th Circuit issued its ruling in a case involving James and Elisabeth Glazner of Birmingham. After Glazner filed for divorce in 1999, he bought a recording device at Radio Shack and surreptitiously attached it to a phone line in their home. He then left on a trip.

While he was gone, Elisabeth Glazner detected a hollow sound on the phone line, checked it out, found the recording device and called police. Before the Glazners’ divorce was finalized, Elisabeth Glazner filed a federal lawsuit against her husband under a 1968 law banning wiretaps of “any person.”

But the case was dismissed by a federal judge, who cited a 1974 court precedent that said there was “implied consent” among married couples to wiretap each other in their own home.

In Thursday’s ruling, the 11th Circuit threw out that precedent entirely, noting that many other courts across the country that have considered the issue have ruled the other way. The 11th Circuit’s decision applies to all three states within its jurisdiction: Georgia, Florida and Alabama.

Elisabeth Glazner will now go to trial against her ex-husband, said her lawyer, Bruce Gordon.

Copyright 2003 The Atlanta Journal-Constitution