I am not an Internet or cyberlaw expert by any stretch of the imagination. But I am not alone in that regard according to an interesting Associated Press. story that Judges on the nation’s top court are handicapped by a lack of knowledge about the Internet when deciding related cases–Justice Stephen G. Breyer, a U.S. Supreme Court justice, admits. If you have a minute, click on the link in blue to read some pretty humorous exchanges from the Justices when discussing technology related issues.
Without trying to grapple with all the subtle nuances on this subject, I do think it is important to make people aware that there are potential legal ramifications for anyone who enters another’s email account without permission and prints or downloads stored emails. There are two portions of the Electronic Communications Privacy Act (ECPA): the Wiretap Act and the Stored Communications Act (SCA). Title I of the ECPA, the Wiretap Act, prohibits interception of communication in certain instances.
An important case, especially for family law practitioners to read, is Jennings v. Jennings, a South Carolina case decided in July, 2010. It involved a wife who learned that her husband was having an affair so she implored her daughter-in-law to access her husband’s email, who did so by changing the husband’s password. Daughter-in-law accessed husband’s account from her own personal computer in order to read emails exchanged between husband and his girlfriend. Wife and daughter-in-law made several copies of the emails, giving copies to wife’s divorce attorney and a private investigator.
After wife filed for divorce, the husband retaliated by filing a complaint in which he alleged a violation of the Wiretap and Stored Communications Act against wife, daughter-in-law, the private investigator, and the private investigator’s employer. The trial court granted summary judgment against the husband and dismissed the case. It was appealed, and the appellate court reversed the holding and remanded the case back to the trial court allowing the plaintiff husband to proceed with the case but only against his daughter-in-law since she was the person who actually entered his email account.
18 U.S.C. § 2701(a) states that “[w]hoever intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to [an]… electronic communication while it is in electronic storage in such system” has violated the Wiretap and Stored Communications Act.
In order to state a cause of action under section 2701(a), the specifics of the email account and communications must fall within the definitions provided in 18 U.S.C. § 2510 (2002), 18 U.S.C. § 2711(1) (2009) and be stored in “electronic storage”. There are several definitions in these sections that relate to whether the contents of an email qualify for protection. But rather than delve into all the details, it appears by the holding in Jennings (and other cases) that entering a basic email account without authorization would most likely be a violation of the Act. It is also worth noting that one district court recently held that online networking sites such as a Facebook, MySpace, and Media Temple meet the Stored Communications Act definition of Electronic Communications Service provider because all three sites provide private messaging or email services.
There are several potential issues that could arise when a person accesses his or her spouse’s emails. First, if emails are stored on a computer hard drive rather than on an online account and one spouse accesses the emails from the computer hard drive and not from the online account, it appears that the emails would not be protected as they would not be stored by an Electronic Communication Service. Second, if the emails are saved by one spouse onto a family computer hard drive, are not password-protected, and the other spouse gains access to the emails through the same route, then it is likely that a court would find that the spouse had authorization to access the emails. Third, while section 2701(a) prohibits accessing the emails, once a spouse is in possession of the emails, whether acquired legally or illegally, he or she may use those emails without any limitations under the statute. See, e.g., Sherman & Co., 94 F.Supp.2d at 821.
Spouses may well be successful in claims against one another under the Wiretap and Stored Communications Act in Ohio courts under facts that generally apply to most people’s email access and accounts. Although some courts have held otherwise, I would predict that Ohio courts will hold that basic email providers; social networking sites such as Facebook, MySpace, and Media Temple; and possibly even dating sites such as E-Harmony or Match.com meet the Stored Communications Act’s definition of an Electronic Communication Service. Likewise, although no Ohio court has interpreted the language “for purposes of backup protection,” as long as the offending spouse accesses the other spouse’s email account through the internet there should be few problems meeting this requirement. So, individuals need to realize that even though there may be a strong desire to enter their spouses email account and do some “detective work,” recognize that such action may result in a civil law suit being filed! You could then become involved in two emotional and expensive legal proceedings both pending at the same time.
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Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.