I see many interesting issues in my practice as a family law attorney (divorce lawyer) in the Rochester Michigan area of Oakland County.  One of the recent issues that the prosecutor is currently litigating regards accessing a spouse’s email and providing copies of the e-mail to another person.

The Issue    

May the prosecutor in Oakland County Michigan charge one spouse with a crime for accessing the other spouse’s email account without permission and providing a copy of the e-mail to another person?

The Answer

The Oakland County Prosecutor charged a man with a crime for this activity and the court has agreed that the prosecutor may move forward with the case.  This does not mean that anyone has found him guilty of a crime yet; however, the case may now proceed to trial.  He appealed this decision to the Michigan Court of Appeals; that Court upheld the decision and made several interesting statements in its analysis of the case.

The basic facts as alleged by the prosecutor are that a woman filed for divorce against her third husband but they remained living in the house together while the divorce case was going on.  The husband allegedly obtained unauthorized access to her email account suspecting that she was having an affair with her first ex-husband.  The emails revealed this suspicion to be true.  This first ex-husband has committed instances of domestic violence against her in front of her children (children of her second ex-husband).  The current husband then gave copies of the e-mail evidence to the second ex-husband and he filed an emergency custody motion.

The prosecutor charged the husband with a crime under a statute that prohibits the unauthorized access of computers, computer programs, computer systems and computer networks.  The man denied that he should be charged under this statute because he accessed an e-mail account which does not fall under any of these categories, that there should be a spousal exception and that he was being singled out for prosecution unfairly as this type of activity happens fairly frequently between divorcing spouses.

The Oakland County Michigan Court found that access was defined as instruct, communicate with, store data in, retrieve or intercept data from or otherwise use the resources of a computer program, computer, computer system or computer network.  Further that to be guilty of the crime he must have (1) intentionally and (2) without authorization or by exceeding valid authorization (3) accessed or caused access to be made to a computer program, computer, computer system or computer network (4) to acquire, alter, damage, delete or destroy property or otherwise use the service of a computer program, computer, computer system or computer network.

The Court found that there was a reasonable inference one might draw from his actions (he admitted to the police that he had accessed his wife’s Gmail account after guessing her password) that he acted intentionally when he accessed the Gmail account.  Further that he used the account to view her email messages and printed the message to distribute to a third party.

Second that there was evidence he acted without authorization.  His wife testified that her account was on a personal computer although the computer was located at home.  Further that she never shared her passwords for the account with the defendant or granted him access to the account.  She only let him use the computer itself when she needed him to make a repair.

Third, a detective testified that a user’s messages are stored in a Gmail account on a Gmail server.  The server is a computer and the account cannot be accessed without a password.  Further, that the internet is a system of computers and computer programs and that Gmail is a computer program.  Thus one could conclude that he accessed or caused access to be made to a computer program, 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 or network.  The Court found one could draw this conclusion when he gained access to his estranged wife’s account, viewed her e-mail and printed them.   In addition, the court found that by doing this he obtained the wife’s property in the form of her password protected emails containing restricted personal information.

The court also went on to indicate that there is no spousal exception to the statute and that there was no current support in case law or statute to dismiss this case because the parties were married at the time.  It also stated that it does not concern itself with what factors into the prosecutor’s decision to charge someone with a crime (or not charge someone else) and that it was of no concern to the Court whether or not this type of activity was fairly commune but no other spouse’s in this situation have been charged.

Summation

To avoid this issue, do not access a spouse’s email account without permission – no snooping.  The Court went so far as to say that it was inconceivable that an email account would be immune from this statute and repeatedly pointed out there is no spousal support exception.