Today I'm mired in my moot court draft covering whether there's an interspousal exemption implied in the law that prohibits wiretapping. (It doesn't appear that there really is.)
One of the authoritative cases is Glazner v. Glazner [347 F.3d 1212, 1223 (11th Cir. 2003)] which abandons an earlier decision [Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974)] that had allowed for such an exemption. In the concurring opinion Judge Carnes wrote the following in response to Chief Judge Edmondson's dissent:
"... [W]e are told that some people may have chosen to live in the Eleventh Circuit because the Simpson decision allowed them to covertly wiretap their spouses. It actually says (and all the emphasis is in the original): "I am not trying to be facetious; but before today, some spouses might have chosen to live in the Eleventh Circuit because they could wiretap their own telephone without being liable under federal law." Dissenting op. of Edmondson, C.J., at n. 13.I suppose, then, a conversation between a couple sitting around their breakfast table in, oh say, Colorado (the Tenth Circuit having rejected Simpson years ago) might have gone something like this:
Jim: Honey, I've been thinking, we ought to move to Alabama.
Liz: But Sweetheart, I thought you liked living in Colorado.
Jim: I do, Sugar, but there's a problem.
Liz: What's troubling you, Sweetie?
Jim: Well, Punkin', Colorado is in the Tenth Circuit, and its federal appeals court has held that if I wiretap your private conversations without your knowledge and consent, I may have to pay you damages if you find out and sue me in federal court. But if we move to Alabama, which is in the Eleventh Circuit, its Simpson decision will allow me to invade your privacy electronically without having to worry about your having a civil claim against me in federal court.
Liz: But Honeybun, doesn't Alabama's criminal eavesdropping statute make it a crime to covertly record conversations without the consent of at least one of the parties to the conversation?
Jim: It does, Snookums, but all I'm worried about is the potential civil cause of action in federal court, not having to serve time in the state slammer.
Liz: You'll look so good in jailhouse stripes, my Love. When do we move?"