This action for divorce raises a question never previously addressed by the Courts of New Jersey.
Is it a statutory violation for one spouse to tape his wife's telephone communications from within the marital home? The utilization of telephone taping equipment in potential divorce scenarios has become more and more prevalent, and the efficacy of intra-spousal taping requires an analysis of the prevailing statute. N.J.S.A. 2A:156A-3 provides that:
"Except as otherwise specifically provided in this act, any person who:
a. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication; or
b. Willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or
c. Willfully uses or endeavors to use the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire or oral communication; shall be guilty of a misdemeanor and shall be fined no more than $10,000.00 or imprisoned not more than 5 years, or both. Subsections b and c of this section shall not apply to the contents of any wire or oral communication, or evidence derived therefrom that has become common knowledge or public information."
In addition to the criminal sanctions, the act further provides for civil damages. Pursuant to Section 24.
"Any person whose wire or oral communication is intercepted, disclosed or used in violation of this act shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person or intercept, disclose or use, such communication; and shall be entitled to recover from any such person:
a. Actual damages, but not less than liquidated damages computed at the rate of $100.00 a day for each day of violation or $1,000.00, whichever is higher;
c. A reasonable attorney's fee and other litigation costs reasonably incurred." (N.J.S.A. 2A:156A-24)
The facts in this case are not in dispute. At the time of the initial taping, the husband and wife were living together (albeit in a state of armed truce) with their two children and the wife's parents. The marital difficulties had reached a point where it became obvious that the wife was going to file a complaint for divorce. The husband decided to install a hidden voice-activated telephone recorder so as to be able to confirm his suspicions that his wife was having an extra-marital affair, intending to use that information against her.
The house had two separate telephone lines. The business phone located in the loft/office area had a normal telephone answering machine attached. The "personal" phone had several extensions including one in the office area. The husband installed a recording device on the personal phone line and over a course of time secretly recorded over ...