
Is reading wife's e-mail a crime?  - wglb
http://www.freep.com/article/20101226/NEWS03/12260530/1011/NEWS09/&template=fullarticle
======
poet
A recent ruling in the Sixth Circuit Court of Appeals held that the government
must get a warrant to read stored emails [1]. The opinion was in large part
based on the "fundamental similarities between email and traditional forms of
communication" [2]. Having established that the 4th amendment does indeed
apply to email, the question is how the 4th amendment works between spouses.
In Burdeau v. McDowell the Supreme Court ruled that "the origin and history
[of the Fourth Amendment] clearly show that it was intended as a restraint
upon the activities of sovereign authority, and was not intended to be a
limitation upon other than governmental agencies" [3]. Further, in the Supreme
Court ruled that (emphasis mine) "[the Fourth Amendment] does not apply to a
search or seizure, _even an unreasonable one_ , effected by a private
individual not acting as an agent of the Government or with the participation
or knowledge of any governmental official." [4] Thus I'm not sure under what
legal basis reading your spouse's email could be considered a crime (although
ethically it is reprehensible).

(Note, no training as a lawyer. Just interested in the law.)

[1] [https://www.eff.org/deeplinks/2010/12/breaking-news-eff-
vict...](https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-
appeals-court-holds)

[2] <https://www.eff.org/files/warshak_opinion_121410.pdf>

[3] <http://supreme.justia.com/us/256/465/case.html>

[4] <http://supreme.justia.com/us/447/649/case.html>

------
chops
I find the poll rather offensive:

 _Should it be legal to snoop into your spouse's e-mail?_

 _-No way! Privacy is a basic right, even in a marriage_

 _-Sure, why not? How else can I keep tabs on him/her?_

Why does the second option have to be framed from the perspective that anyone
who logs into their spouse's email is doing so to keep tabs on them? What's
wrong with a simple "Yes/No"? This isn't a webforum of friends joking around,
this is a legitimate press entity.

~~~
electromagnetic
I found it offensive too. My wife has full access to my email/facebook/bank
and everything. Just this weekend my wife ordered something in my name and
thus used my email. I don't see it as a problem.

Like my wife said one time: "If you were cheating on me, I wouldn't know how
to track it online." Not because she's not technologically adept, but because
she's seen me using proxy servers and disposable emails that she knows I
wouldn't be dumb enough to do it in plain sight. Just like it'd be moronic to
receive love letter correspondence at my home address, it's moronic to receive
it at my main email address.

I'll also clarify further. The woman prosecuting _is a moron_ for using her
normal email address (with her password in a book next to the computer) to
conduct an affair. If you don't try to hide it, you're trying to get caught.
I'm sorry, I was computer savvy enough at 4 to start up a PC and use DOS to
load a game. A 6-10 year old today would beyond the shadow of a doubt be able
to access her email - therefore it was unprotected.

~~~
lulin
You don't lose your right to privacy just because you are a moron.

~~~
electromagnetic
I'd say the traces on Facebook/Myspace/Twitter would beg to differ, but
legally speaking you're right.

------
ligator
This is how Oakland County Prosecutor Jessica Cooper describes "knowing wife's
password and logging into gmail":

 _"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."_

~~~
Groxx
> _Leon Walker told the Free Press he routinely used the computer and that she
> kept all of her passwords in a small book next to the computer._

Wish I had skills like that. I wonder where he was trained to hack computers,
I'd love to reach that level some day.

~~~
RexRollman
When I read that portion, I was amazed that this action was brought. I don't
know what is motivating the prosecutor but I doubt it is a sense of justice.

~~~
Groxx
He caught her having an affair. I doubt justice is on her mind; more like
vengeance, and this showed up as something to get angry over. As to the
prosecuting _lawyer_... probably money.

------
zdw
Is this any different than opening her physical mail or reading her diary? I
doubt you'd go to jail for 5 years for either of those...

~~~
electromagnetic
Agreed, her case also becomes non-existent if she's ever asked him to access
her email for her. My wife knows all my passwords and I know all hers.
Furthermore this is dangerous territory for the prosecution not only on the
appearance front (it looks like a frivolous suit) but the precedence could
collapse the judicial service in the state when kids sue their parents over
snooping in their email/facebook and finding out they smoke pot or had sex.

I'd also like to point out how dangerous fighting the letter of the law is.
From what I can tell in Michigan adultery is still a felony on the books and
could land both the wife and the man she had sex with in jail. Prosecuting
over an invasion of privacy is exceptionally stupid when you have to full-out
admit to a felony that is still on the books but is unprosecuted.

~~~
philwelch
I wonder if an adultery charge would even hold up in court anymore. I think
the "right to privacy" (which is sort of an unenumerated constitutional right,
but which has tons of legal precedent) might actually preclude actually
prosecuting someone for adultery.

~~~
tptacek
As far as I know, we're all just waiting for a state prosecutor to be dumb
enough to bring an adultery case so these statutes can be struck down by the
Supreme Court nationwide once and for all. It's (apparently) been years since
the last case was filed; the ACLU had the guy's back, but he let it go in
exchange for 20 hours community service and no record.

------
nodata
What's yours is mine and mine is yours.

Abuse of trust? Yes. Crime? No.

~~~
tptacek
Theft of postal service mail has been a crime since 1948. It apparently comes
up all the time during divorce disputes (though for obvious reasons it isn't
routinely prosecuted). Why should email be any different? The ECPA is decades
old and covers exactly this issue.

~~~
nodata
So is reading someone else's postal mail theft?

------
tptacek
Commented here: <http://news.ycombinator.com/item?id=2044097>

Nut: according to the WSJ, this couple was separated when the husband accessed
the wife's email address. That being the case, the husband had absolutely no
right to access the wife's private property; the husband straight-up broke the
law. Michigan isn't a community property state, but even in Texas, once you're
separated, what's yours is yours.

Just because you use a shared machine doesn't mean you've surrendered your
accounts to anyone else who uses the machine. The law does not say that you
have to employ state-of-the-art mechanisms to protect your email. Your
password can be "password"; _it's still unlawful to break into the account_.

------
johngalt
Reading your wife's email _is_ a crime. It's a horrible violation of privacy,
and borders on abuse.

Of course a woman reading a husband's email is normal.

------
gst
In related news:
[http://www.defcon.org/images/defcon-18/dc-18-presentations/Z...](http://www.defcon.org/images/defcon-18/dc-18-presentations/Zoz/Zoz-
Pwned-by-the-Owner.pdf)

I wonder what the legal consequences are when you log into the accounts of
someone who stole your laptop (that you can still access via SSH).

Are you even allowed to snoop on what happens on your laptop locally?

~~~
tptacek
Laptop thieves have lost cases trying to claim an expectation of privacy on
stolen laptops, but "not because of a bright line rule that thieves never have
a reasonable expectation of privacy in stolen property" (Florida Second
District Court of Appeals). That case was the police looking at the laptop
itself; presumably, if you lifted a cookie out of the browser config on your
stolen laptop and sidejacked the thief's email account, her cause of action
against you would not get weaker.

------
DanielBMarkham
Prosecutors can charge people with all sorts of things. I seriously doubt this
will stick.

I have a friend who is politically active around a certain cause -- the
details are not important -- and I've noticed that he receives an "update"
every day or two with the most outlandish sorts of news. Of course, in a
country of 300+ million, odds are something unusual are going on every day. To
read the accounts as he does suggests there is some vast conspiracy at work.
But to take an honest look at the numbers just shows that, given the
randomness of people's behavior, every once in a million times something
happens that would piss him off. The rest is just a result of the large number
of people and the efficiency of the reporting systems involved.

So I'm assuming that new law isn't being explored, and this is just another
example of this phenomenon I've noticed with my friend. What I'm interested
in, however, is how the prosecutor came up with the idea to criminally charge
him? Did the wife file criminal charges on her own (which I suspect)? I can't
imagine this being an issue that the state would have any interest in
pursuing. Part of a lame-brain divorce lawyer's case, sure, but not a matter
of law enforcement.

Of course, I'm not a lawyer and don't even play one on TV, so whatever you do,
don't put any trust in any legal analysis I might give.

