An Ohio man facing a lawsuit from his wife's friend for intercepting her emails using spyware on a household computer filed suit Friday against the spyware maker, arguing the company's ads failed to warn him that using it to monitor his family, including his wife, would violate state and federal laws.
Relying on a federal wiretap law that allows victims of spying to sue for damages, Jeffrey Havlicek argues that Deep Software, the Canadian company that sold him the key logger, should pay him thousands of dollars in damages and pay any claim from the lawsuit filed against him for spying illegally.
Havlicek, a computer expert who works for the United States Air Force, bought software called the "Activity Monitor" in September 2005 and installed it on the family computer. The following December, Havlicek separated from his wife Amy Havlicek.The spyware's existence was revealed in the subsequent divorce proceeding.
His wife's friend, Christina Potter then sued him, alleging Jeffrey Haylicek used the key logger to get emails between her and his wife, and to get into her Yahoo! and AOL accounts that she let Amy use. Both lawsuits are ongoing in an Ohio Federal District Court. Potter also alleges that he then publicly disclosed the emails to harass and humiliate her.
For his part, Jeffrey Havlicek admits installing the software and admits that he has communications between his wife and Potter, but denies he used the key logger to get the emails or access her accounts.
Havlicek says he bought Deep Software's key logger "based upon its advertised capabilities that promised he would be able to monitor the family's computer usage while he was away." Deep Software also advertised that the software was an "ideal spy software package to ensure you have the control you need over your child or spouse activity when they are online."
The company failed to warn him that state and federal privacy laws make it a crime to intercept emails, Mr. Havlicek charged. In addition to attorney's fees and money equal to any judgment against him in the Potter suit, Havlicek is asking for at least $10,000 in damages from the software maker.
Deep Software and lawyers for Jeffrey Havlicek and Christina Potter were unavailable for immediate comment.
UPDATE: Potter originally asked the district court to disallow Jeffrey Havlicek from using the purloined emails in his divorce proceedings. The court decided that the Electronic Communications Privacy Act would bar the use of recorded phone calls or illegally recorded conversations, but has no such provision for electronic communications. So the emails are in, but Potter can sue. That's according to an April post by the Tech Law Prof Blog.
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