Outside the Beltway

Appeals Court Rules Husband Can Be Charged Criminally For Reading Wife’s Email

Domestic dispute or criminal act?

Doug Mataconis · Saturday, December 31, 2011 · 11 comments

Just under a year ago, James Joyner wrote about a case out of Michigan about a husband who was being prosecuted under that state’s computer crimes statute for accessing his wife’s email without permission. This excerpt from the original story provides the details:

Could someone face prison time for snooping through a spouse’s e-mails?

For Leon Walker of Michigan, the answer was yes.

Suspecting that his wife was involved with another man, and worried that it was affecting their daughter, Walker logged into Clara Walker’s Gmail account last summer. Walker, 33, said it was easy for him to log in because his wife kept the password in a book next to the computer. “I definitely felt it was OK to confirm [the affair] by reading her e-mail in our home,” said Walker.

While Walker believed it was OK, Oakland County prosecutors did not and have charged Walker with felony misuse of a computer. If convicted, he could face up to five years in prison.

[…]

Prosecutors contend that Walker — who is a computer technician — illegally hacked into his wife’s computer after she had filed for divorce, but Walker’s lawyer calls the prosecution’s claim an overzealous application of a law meant to protect trade secrets and credit card data.

“People who live under the same roof, be they married or not, and who share a computer — as in this instance — they may have some personal privacy lines that they adhere to. And if they don’t, that’s between the two individuals,” defense attorney Leon Weiss said.

“The word ‘e-mail’ does not appear in this statute. This is an anti-hacking statute,” Weiss said. “It does not, in any way, shape or form encompass reading somebody’s e-mail.”

Over the past year, the case has made its way back and forth through District and Circuit Courts in Oakland County, Michigan as the prosecution and defense argued over whether what Walker did could be charged under the applicable statute. After losing on that issue in the last hearing, Walker appealed, and, earlier this week the Michigan Court of Appeals ruled that Walker can indeed be charged under the facts alleged and proven in preliminary hearings:

Cuckholded husband Leon Walker’s attempt to have the felony case against him dismissed for hacking into his wife’s email failed Wednesday when the Michigan Court of Appeals ruled prosecutors have sufficient evidence to charge him with a crime.

Walker, of Rochester Hills, was charged with a five-year felony after accessing his estranged wife’s email on a shared computer and using some of the information in their divorce proceedings. He told the court he “guessed” her password.

Walker, her third husband, reportedly discovered in his snooping that she was having an affair with her second husband.

Walker also printed emails and delivered them to his wife’s first ex-husband, who was embroiled in a child custody dispute with her. The ex tried to use the documents to prove neglect.

Walker, an Oakland County Information Technology employee, sought to have the case against him dismissed, arguing the statute under which he was charged “prohibits the unauthorized access of computers, computer programs, computers systems, and computer networks, and that an email account does not fall under any of those categories,” according to court documents.

The circuit court disagreed, ruling that “Gmail is a computer system and, although the statute does not refer to email, the district court analogized the case to a felonious assault where a gun was used but an item such as a bullet or gun powder that is not specifically named in the statute harmed the victim.”

The Court’s opinion deals largely with a technical interpretation of the Michigan statute, but it finds that Walker did indeed act in a manner covered by the law:

Defendant admitted to the police that he accessed his estranged wife’s Gmail account after guessing her password. Defendant then gave copies of her emails to a third party. Thus, a reasonable inference can be drawn that defendant acted intentionally when he accessed his wife’s Gmail account, used the account to view her email messages, and printed the messages to distribute to a third party.

Second, there was evidence that defendant acted without authorization when he accessed his estranged wife’s Gmail account. Defendant’s wife testified that her Gmail account was a  personal account and that she never shared her passwords for the account with defendant or granted him permission to access the account. Further, she allowed defendant to use her computer only when it needed a repair. Defendant admitted to the police that he accessed his wife’s Gmail account by guessing her password. These facts support a reasonable inference that defendant lacked authorization for his access of his wife’s Gmail account.

Next, the evidence at the preliminary examinations established that defendant accessed or caused access to be made to a computer program, computer, computer system, or computer network. Detective Carol Liposky, testifying as an expert on computer crimes and computer-forensic issues, explained that a user’s messages are stored on the Gmail server. A server is a computer. The emails cannot be accessed without a password. After a user signs in with a valid password, email messages are retrieved from the Gmail server through the Internet. The Internet is a computer network. Further, Gmail is a computer program because it is written by programmers to perform certain tasks, i.e., to function as an email client by which users can send emails, accept incoming emails, and delete emails. The Gmail servers act as a computer system by performing the required functions. Thus, Liposky opined that by accessing Gmail, a person uses a computer program, a computer system, a computer network, and a computer. “She’s accessing it using a computer, she’s using the Internet, which is a computer network, and a program such as Gmail, that it [sic] was created specifically for e-mail.” Thus, the evidence supports a conclusion that by guessing his wife’s password and then using her Gmail account, defendant accessed or caused access to be made to a computer program, computer, computer system, or computer network.

Finally, the prosecutor presented evidence that defendant acquired, altered, damaged, deleted, or destroyed property or otherwise used the service of a computer program, computer, computer system, or computer network. Defendant used the services of Gmail when he gained access to his estranged wife’s account, viewed her emails, and printed them to distribute to a third party. Further, by viewing, printing, and distributing the emails, defendant acquired his wife’s property, i.e., her password-protected emails containing restricted personal information or other tangible or intangible items of value. MCL 752.793(1).

One legal analyst, though, raises an interesting policy question:

At the Appeals Court level, legal analyst and Talk Radio 1270 morning show host Charlie Langton said he’s surprised at the decision.

“I think in this day and age we should prosecute people for real crimes that involve misuse of your position for personal gain,” Langton said.

He also thinks it’s an issue for family court, and not criminal court.

“The criminal court should not interfere in what appears to be a very messy divorce,” Langton said.

This is not an uncommon issue in domestic relations cases these days. Indeed, it seems that a common means by which infidelity is discovered in the day and age of e-mail, text messaging, and Twitter is via illicit communications “accidentally” discovered  by one spouse concerning the other. How accidental these discoveries actually are is another question, of course, since it’s usually the case that someone has to go looking for this kind of stuff, and have reason to do so, in order to find it. Legally, though, doing so often violates not only state laws, but also Federal laws that prohibit unauthorized access to stored communications, such as the law in Michigan. In Virginia, for example, such activity would generally be covered by the law against Computer trespass. There are no exceptions in these laws for adults living together in the same household or married couples, so prosecutions like this are likely to become the rule rather than the exception in the future.

The question is, should they? Langton makes a good point above, I think, when he argues that the facts at issue in the Walker case make it seem more appropriate for Family Court than Criminal Court, perhaps via court rules that state that evidence of infidelity obtained in this matter would not be admissible in Court, perhaps by other means. Sending someone to jail in this situation strikes me as a bit of an overreach and, perhaps, a misapplication of prosecutorial resources that could be better applied to violent crime and fraud.

H/T: Volokh Conspiracy