Sep 122012
 September 12, 2012  Posted by  Court, Featured News, Surveillance, U.S.

Dan Horn reports on a case of domestic surveillance that is noteworthy for the issues it raises. If you have a right to install surveillance systems – including audio recording and monitoring online activity – in your own home and on your own devices, what rights do your spouse and visitors to your home have with respect to their privacy?

Although a Cincinnati couple’s divorce is finalized, the surveillance uncovered during their divorce proceedings resulted in two federal court lawsuits involving friends and relatives, the husband’s defense attorney, and a company that manufactures the computer monitoring software. One of those suing is a Javier Luis, a Tampa man whose e-mail communications with the wife were recorded without his knowledge or consent.

Catherine Zang’s suit lists several friends and relatives who claim their privacy was violated while they were in the home. Luis’ suit claims Awareness Technologies, which makes the software that copied the emails, knew its product could be used to violate privacy.

Both suits say Joe Zang violated not only the law but the unspoken moral and ethical rules husbands and wives should follow even when they don’t entirely trust one another.

No criminal charges were filed as a result of the revelations during the divorce proceedings, but one of the issues in the civil lawsuits is whether the husband’s divorce attorney engaged in improper, if not illegal, conduct:

According to her lawsuit, Joe Zang’s divorce lawyer, Mary Jill Donovan, revealed she had obtained evidence that portrayed Catherine Zang in “unflattering, embarrassing and private settings.”

The objective was clear, the lawsuit says. Donovan hoped to use the surveillance to strong-arm Catherine Zang into a favorable settlement.

Donovan, who is a defendant in both lawsuits, is a well-known Cincinnati defense lawyer and wife of a Hamilton County sheriff candidate. Both she and her lawyer declined comment.

In her response to the lawsuit by Luis, Donovan either denies all allegations or claims she has insufficient knowledge to respond. In some cases, she asserts that to respond would be a violation of attorney-client privilege,  but she also claims that even if some of these things happened, they were legal under federal and Ohio laws.

To complicate what is already a complex case to begin with, Catherine Zang’s lawyer, Donald Roberts, was removed as her counsel in the lawsuits because he might be a witness if the case goes to trial. Donald Roberts is married to Catherine Zang’s sister and represented Zang in the divorce. But Joe Zang claims that Roberts advised him in 2009 to install the surveillance system to keep an eye on his wife.

“Joe took Donald’s advice,” Joe Zang’s lawyer wrote in a recent legal brief. “The software worked as intended. It captured inappropriate Internet and email communications by Catherine Zang.”

Roberts, who did not return calls, has said in court he gave no such advice.

The crux of the legal issue is that both federal and Ohio wiretapping laws are based on single-party consent. Joe Zang didn’t need his wife’s or guests’ or anyone’s permission to record conversations in his own home using concealed audio recording. But did he need consent to intercept or copy e-mail communications?

And does constant surveillance raise this to a new level and different set of rules?  Does your right to install monitoring devices in your own home or on your own equipment trump your spouse’s expectation of privacy in their own home and on a shared computer? And what about the privacy of those who communicate with the spouse via shared computer or phones?

Read more on USA Today.

These are two cases I’ll be watching.  One is  Zang v. Zang, in U.S. District Court Southern District of Ohio, Case #: 1:11-cv-00884-SJD. The related case is Luis v. Zang: 1:12-cv-00629-SJD-KLL.

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