Accessing Spouse’s Emails Could Violate Federal Law

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In our digital age, much of our correspondence leaves a trail. In a divorce, particularly where the spouses have heightened emotions, the temptation to track that digital trail to catch the other spouse in some sort of compromising behavior can be very strong – but following that temptation might result in committing a felony.

Our state and federal governments long have protected electronic privacy. The original federal Wiretap Act referred to listening in on phone conversations by – you guessed it – putting a “tap” on the wire communication between two phones. Today, we have ever more sophisticated ways of communicating and also spying on that communicating. And we also have new laws to deal with this new terrain, including not only the Wiretap Act but electronic privacy laws specifically addressing email transmission and storage.

In general, all of these various laws have the effect of making it a felony to intercept without authorization an electronic communication, including emails.

If you have permission to access your spouse’s email account, you can do so. But you best have that permission in writing. Otherwise, just knowing your spouse’s email password is not permission – it is just an “easy” hack of the account, and any information obtained may involve a violation of multiple state and federal laws.

As an example of how far these laws could go in a divorce case, consider a recent decision from the Seventh Circuit of the U.S. Circuit Court of Appeals. Husband sued wife for a violation of the Wiretap Act, alleging that wife without his authorization put an automatic forward onto each of his emails so that they would go to wife. Husband did not discover this until the middle of the divorce litigation, when wife produced emails of husband having multiple affairs. The Seventh Circuit said that wife had technically violated the Wiretap Act.

What are the implications of this ruling?

First, it could lead to spouses trying to have their soon-to-be exes prosecuted for a crime or, as in the Seventh Circuit case, found liable for money damages for the violations (these money damages under certain laws, which count every violation, could become quite steep). Second, it could lead to family courts having to consider whether certain information could be excluded at trial because it was obtained illegally. In criminal cases, we would call these Fourth Amendment violations. But divorces are not criminal cases and no constitutional protection would automatically exclude illegally obtained evidence. However, our court rules and case law in civil matters do have sanctions for excluding evidence that would apply to these situations, and the courts would have to balance how a party obtained the information against the value of the information to the divorce.

The Seventh Circuit case should be another warning to angry spouses to be very careful how they go about gathering evidence against the other spouse – it could even lead to a criminal conviction.

If you have questions about divorce and wiretaps, contact us – we can help.

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