For every door that technology opens, there seems to be a corresponding opportunity for a prosecutor somewhere to find a new crime. In Rochester Hills, Michigan, Leon Walker will find out whether reading his wife’s email is enough of a reason to spend five years as a guest of the state.
From The Detroit Free Press :
Oakland County prosecutors, relying on a Michigan statute typically used to prosecute crimes such as identity theft or stealing trade secrets, have charged Leon Walker, 33, with a felony after he logged onto a laptop in the home he shared with his wife, Clara Walker.
Using her password, he accessed her Gmail account and learned she was having an affair. He now is facing a Feb. 7 trial. She filed for divorce, which was finalized earlier this month.
That there is a law prohibiting the access, without authorization or in excess of authorization, the emails of another isn’t particularly controversial. Hackers would do so, and no one would complain that they shouldn’t be prohibited upon pain of criminal sanction. But this was a husband on a shared computer.
Oakland County Prosecutor Jessica Cooper defended her decision to charge Leon Walker.
“The guy is a hacker,” Cooper said in a voice mail response to the Free Press last week. “It was password protected, he had wonderful skills, and was highly trained. Then he downloaded them and used them in a very contentious way.”
Walker used the emails, about his wife having an affair with her second husband, who was abusive, by providing them to her first husband who was the father of their child who, according to Walker, might be at risk. Leon Walker said he did what he had to do. The story is a bit too convoluted to get any sense of whether he was really protecting a child or angry about being cuckolded. It provides little basis to suggest that the son of the wife and first husband was at actual risk.
Naturally, Walker’s lawyer thinks the prosecution is out of its mind.
Walker’s defense attorney, Leon Weiss, said Cooper is “dead wrong” on the law.
“I’ve been a defense attorney for 34 years and I’ve never seen anything like this,” he said. “This is a hacking statute, the kind of statute they use if you try to break into a government system or private business for some nefarious purpose. It’s to protect against identity fraud, to keep somebody from taking somebody’s intellectual property or trade secrets.
“I have to ask: ‘Don’t the prosecutors have more important things to do with their time?’ “
An interesting but irrelevant question. The prosecution doesn’t require defense counsel’s approval to bring charges. The problem isn’t that the broader rationale for the law is stop outside hackers, but whether a spouse can be a “hacker.” Aren’t wives allowed to keep secrets from husbands? Even third husbands?
The fact pattern suggests that this isn’t likely to be the best test case for such an extension of law, criminalizing access between spouses. This was a shared computer, and the wife kept her passwords in a small book next to the computer. This hardly seems to suggest that she demonstrated an intent to keep her email private, given that access was readily available.
On the other hand, what exactly does a person have to do to maintain privacy from a spouse? Separate computers? Double secret passwords?
This is a far bigger issue than would appear to many, given that electronic communications play a significant role in divorces.
About 45% of divorce cases involve some snooping — and gathering — of e-mail, Facebook and other online material, Lane said.
If you want to find out if your spouse is doing you wrong, chances are awfully good that the proof is on the computer.
On the other hand, many of us allow our spouses unfettered access to our personal email. It’s less that we have nothing to hide, than that our email is so boring that we can only hope someone else will read it and save us the trauma. But then, there always remains the potential that something will appear in our inbox that we prefer to keep to ourselves, for whatever reason.
As electronic communications are not going away soon, it should be anticipated that there will be both new laws criminalizing related conduct (usually after some high profile tragedy that wouldn’t be affected by the new law), and extensions of existing law to cover unanticipated scenarios.
While I would expect that Leon Walker’s defense is on solid footing, I can’t help but wonder why this statute shouldn’t apply to protect the confidence of one spouse against another. Whether it should be criminal, or how criminal, is another matter, but if it isn’t criminal, what’s the solution to maintaining personal privacy, even from a spouse, in the digital age?
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Does your wife know about this post?
Not yet, but she read my last post and made a pointed note how she did the shoveling and yet I somehow appeared to be a nice guy for making her hot chocolate. She would like me to note that it wasn’t very good hot chocolate, and had none of the tiny marshmallows in it, since I used them up in my hot chocolate. This isn’t really responsive to your query, but I felt the need to come clean just in case she does read this post.
Why didn’t you buy her a snowplow?
We have a snow plow, the John Deere trail gator 4×6. But she’s old school.
Is it any different from picking up her diary, opening it and reading it?
Because it’s electronic doesn’t make it any more secure. If you read a person diary after they have died, are you still ” hacking” or should the last will and testament give only certain people access. .
If the computer was in his house and not part of the matrimonial settlement, the possessor has a legal obligation to determine if any possible “wikileaks” or incriminating evidence is hidden within the computer and for which the possessor could be liable.
Because the e-mail contain evidence of child abuse is the wife party to the abuse and as such withholding evidence? Obviously the e-mail is clearly defined as evidence if the wife is willing to take such action. Is the DA, Jessica Carter also party to the possible assault by representing the woman and not taking any action against the partner and giving tacit agreement to the acts?.
And Guilty be association?
The legal arguments are quite fascinating.
The biggest problem with extending this law to spouses is that it unnecessarily overrides marital partners’ ability to manage their marriage and control damage that might be done to themselves, their partners and children.
What of the husband who, in suspecting her wife’s spending habits are endangering the family’s financial security, decides to check her online credit card statement, the password of which is remembered by the browser? Should she just wait for foreclosure?
What of the wife who suspects her husband may be watching child porn, so she logs into his computer to check his browser history?
I came up with all sorts of examples in which a spouse suspects her partner has a problem that he doesn’t know he has, or simply won’t admit to himself or his spouse. Even in the less noble intrusions, spouses do not have a substantial expectation of privacy between each other.
Perhaps more importantly, they have an expectation of privacy that’s not very different from family planning. Marital partners have a strong interest in managing their expectations of privacy and disclosure amongst themselves without state interference. Absent some compelling state interest I’m overlooking, this alone ought to bar extension of this misapplied law.
So you think it’s like domestic violence, where the state should keep it’s nose out of things until a dead body washes ashore, lest it interfere with the marital partners’ ability to manage their marriage, etc?
Do you think the wife should still be chattel too?
That’s a little disingenuous.
Marital partners have no recognizable interest in committing domestic violence against each other. Even if they did, the state’s interest in preventing such destructive, violent behavior is about as strong as state interest gets.
No such case has been made for invasions of privacy between marital partners (whether it be electronic or otherwise).
Don’t get me wrong, I don’t think we should go snooping through our spouses’ emails. I also don’t think we should have affairs, unilaterally gamble away nest eggs, or hide addictions from our spouses.
But more importantly, I don’t think dishonest and untrustworthy conduct among spouses should be criminalized.
Also, I apologize for the wrongly-gendered pro-nouns. I attempted to swap husband and wife around to remain gender neutral, but it’s awfully difficult to edit in this tiny text box.
The problem is that you can’t have it both ways, where a spouse is entitled to privacy but there’s no remedy for the violation of it. It’s not that I’m suggesting it be criminalized (I’m not), but then without criminal sanction, what sanction is there? Or, just to mix the examples up even worse, if there’s no remedy at law, does this not leave the spouses to domestic violence to resolve their dispute (which we both agree is and should be criminal)?
My point isn’t that I disagree with you, but every “solution” needs to consider its consequences. We could argue that no conduct, short of violence, between husband and wife should be criminal, but have we now turned the household into the wild west in those relationships where things aren’t going great? And if so, is that the best we can or want to do? Do we let them go at it, and only step in when a body washes ashore? Or should the state become embroiled in the relationship, and if so, where does it end? It’s not an easy question, and every answer begs more problems.
You let things like gender pronouns bother you? Sheesh. We’re not politically correct here. You can call guys and gals any darn thing you want.
It’s not the use of gender-neutral pronouns that bothers me, it’s the fact that I referred to a husband as a “she.”
you have to consider the context and /or the circumstances, couple are divorced, for example, he still has the computer. Does his just delete folders and or files? Now, also consider wife is vengeful, and leaves pedophilia files on the computer and then calls the police.
The husband, possessor and legal owner of the computer is then arrested …..
The permutations of possibles. The husband’s intent for searching the files has not been made clear, only of what was found.
At what point should he have ignored any evidence of a wrong doing? Should he have called the police and made an official complaint that a child could have been at risk?
Again, the risk of legal action against him, but, where do you draw the line?
The concerned parent checking on the sites their children visit, checking a network site and using the child’s password, is this also hacking?
At what point does it become acceptable.
Should divorcing couple take their computers to the police, obtain a warrant allowing them to search the files on the grounds that there could be incriminating evidence? Would it than be a waste of police time if nothing was found?
It’s not about gender but a responsibility for magnetic media and the consequence of looking.
It’s not to say there’s no remedy — there’s always family court. After all, could this egregious violation of gmail privacy not been brought up and considered in the divorce proceedings?
Is divorce not in and of itself a remedy (One you can’t rely upon to solve domestic violence, because a battered spouse fears leaving will lead to more violence)?
What I’m saying is that spouses don’t (or shouldn’t) have any general legally-protected privacy interest as to their spouses. Just as one has no legally-protected interest in monogamy or good financial management skills in their spouse.
Privacy between each other is something individuals need to work out amongst themselves. If my answer leaves no legal remedy, it’s because there shouldn’t be one. Allowing criminal prosecution for spousal snooping is almost more ridiculous than the existence of a criminal conversation cause of action.
No points deducted for silly stuff like that.
Divorce? You gotta be kidding. First, it takes forever. Second, it costs the parties. Third, you want to encourage divorce? Fourth, family court can’t do anything to sanction a search by a spouse, aside from granting the divorce after 5 years and $500k later. Fifth, and what about the children?
Privacy between spouses obviously best worked out between them. The issue only arises when they can’t work it out. Therein lies the problem.
I’m not encouraging anything. Sure, divorce is a bad thing — but criminal charges are ten times worse. And who the heck wouldn’t seek a divorce from a spouse who files charges against them? I’d call my divorce lawyer before I called my criminal lawyer if it were to happen to me.
You can substitute “Privacy” with a multitude of other marital problems. What happens when couples can’t work out personality conflicts? infidelity? money problems?
I can’t find a way to distinguish privacy from any of these things, yet with each of them, the only option besides working it out happens to be divorce.