It used to be couples embroiled in divorce battles would hire private investigators to collect evidence against each other. In this digital era, however, more people are relying on electronic means to snag their spouses in compromising situations. The ramifications of this are unclear.
In Rochester Hills, MI, a man is facing felony charges for allegedly hacking into his ex-wife’s computer to access her emails; if found guilty, he faces a prison term of up to five years. (1)
According to reports, Leon Walker is accused of using his ex-wife’s password to access her email, where he discovered alleged infidelities. Walker’s ex-wife, Clara, claims the computer was hers and the password that protected her account was kept secret. Walker counter-claimed that, although the two were divorced, they continued to share the same home and he had access to the computer. He further contended his ex-wife did not protect her passwords but kept them in a book beside the computer. (2)
Walker’s actions are not unusual – online communications, including social networks and email, are used to gather evidence in some 45% of divorce cases. Most often, however, this evidence is used in civil – not criminal – cases. The felony charge, therefore, is unusual. Walker is being prosecuted under the same hacking statute used in Michigan to prosecute identity or trade secret thefts. (2)
Emails, by their nature, are not private. Unlike telephone calls, emails are digital and can be stored in several locations – the sender’s and the receiver’s computers and on the ISP server – for a long time. This makes emails more easily accessible, reducing a person’s “reasonable expectation” of privacy. (3)
In a 2001 New Jersey case, White v White, the court cited this lack of “reasonable expectation” of privacy when it denied a motion to suppress emails. In that case, the court ruled that the husband had no “objective reasonable expectation” of privacy and, therefore, the wife’s accessing of his emails did not constitute an invasion of privacy. That court also found that, because the emails had been accessed after being sent and saved, the action did not violate the New Jersey Wiretap Act, which pertains only to emails in transmission. (4)
While waiting for the legal ambiguities to work themselves out, the prudent course of action is to remember that emails are not private and should contain only messages you wouldn’t mind others reading.