Bugged Teddy Bear Violates Wiretap Act
A former wife who bugged a teddy bear to record her ex’s conversations with their child violated the federal Wiretap Act, a Nebraska district court ruled.
Dianna Divingnzzo wanted to obtain full custody of her daughter, Ellenna, so she planted a recording device in her then 4-year-old daughter’s teddy bear. She then told her ex-husband that the daughter wanted to carry the teddy bear with her all the time. The purpose was to record statements to show that he was mistreating his daughter.
The recording device was on all the time, so it recorded not only his conversations, but also conversations by others. Ms. Divingnzzo downloaded the conversations via a UBS port to a CD that she had her father transcribe. Eventually, she turned selected transcripts over to her attorney. He informed the attorney for the husband of the recordings, who then asked for a ruling from the custody judge concerning the admissibility. Before the judge ruled, however, Ms. Divingnzzo’s attorney sent copies of the transcripts to the guardian ad litem and her attorney and two court-appointed mental health officials. The state court judge ruled the transcripts inadmissible in the custody hearing.
The ex-husband and others filed a federal case alleging that the recording violated the federal Wiretap Act, seeking statutory damages. Ms. Divingnzzo argued that since her daughter was present when the recordings were made, there was consent for the recordings. The court disagreed, finding that “the uncontroverted evidence shows that the bugging of Little Bear accomplished much more than simply recording oral communications to which Ellenna was a party. Rather, the device was intentionally designed to record absolutely everything that transpired in presence of the toy, at any location where it might be placed by anybody.”
The court found that “all of the plaintiffs exhibited expectations that their oral communications were not subject to interception, and the circumstances of each incident justified the plaintiffs’ expectation that their oral communications were not subject to interception.” The court ordered the wife and her father to each pay $10,000 in damages to each of the plaintiffs.
As to the attorney’s distribution of the transcripts to the guardian ad litem and others, the court wrote that it was “unable to articulate any justification” for such distribution without the express permission of the state court judge, but the federal judge decided against assessing damages against the attorney.
William Lewton et al. v. Dianna Divingnzzo et al., U.S. District Court Nebraska, No. 09 CV 2-FG3.