email privacy sub account of spouse

[jonathanz]

hi-
my brother and sister-in-law are involved in a marital dispute (those are kind words for it). In their marital home they have a computer that utilizes Cablevision's Optimum Online service. Although my brother is the only name on the Cablevision account (i.e., he is responsible to pay the bills and, the only one with a relationship with Cablevision), both he and his wife maintain separate e-mail accounts (although his e-mail account is the master account and hers is a sub-account of it). In fact, if she wants to change her e-mail password, she needs him to access his account and change her password there. As the account holder, does he have the right to access her e-mail account or does she have some sort of privacy right over her account? by the way this access would be through a web based mail system which can be accessed from anywhere on the internet since he is not in the marital home at this time. Does the answer change if she has freely shared her e-mail password with him in the past?

Your help would be appreciated.

thanks
jonathanz

 

[Michael Wechsler]

Good question. This is always a fact specific issue and, for the most part, if husband and wife have the same access to a computer there generally aren't privacy rights. But here there are specific passwords which are locks and there is an expectation of privacy. I'll post some famous cases below and what those courts found:


White v. White, 344 N.J. Super. 211, 781 A.2d 85 (Ch. Div. 2001). The wife in White sought to use certain emails retrieved off of the family computer as evidence in a custody case. The husband argued that admission of the documents violated New Jersey's state wiretap act, plus an alleged common-law right of privacy. The court clearly held that the wife's general authority to access the computer gave her a prima facie right to access any information stored on the computer. The court clearly suggested that the husband could restrict her rights by protecting specific files with a password. Whether he could do so by lesser means, such as simply telling the wife she was not permitted to access certain information, was not considered. But clearly, the husband had to take positive action to deny the wife lawful access to any information stored upon a computer which she was generally permitted to use.

It is settled law that the New Jersey Wiretapping and Electronic Surveillance Control Act applies when one spouse illegally records the communications of the other spouse. Scott v. Scott, 277 N.J. Super. 601 (Ch. Div. 1994).

It is clear that the language of the N.J. Wiretapping Act contains no explicit exemption for any wiretapping by an aggrieved spouse. It is not the function of the courts to graft an exemption where the Legislature has not seen fit to provide one. M.G. v. J.C., 254 N.J. Super. 470, 477 (Ch. Div. 1991).

In 1986 Congress enacted the Electronic Communications Privacy Act of 1986 (ECPA) to "update and clarify" federal privacy protections and standards "in light of dramatic changes in new computer and telecommunications technologies." Senate Report No. 99-541, 99th Cong., 2d Sess. 1 (1986). It represented a "fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies." Ibid.

(In the White case the key was that the access to the email was not the result of an unauthorized use of the other spouse's email account and password.)

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In Hazard v. Hazard, 833 S.W.2d 911 (Tenn. Ct. App. 1991), the wife retrieved from a computer located in the marital home a copy of a letter from the husband to a former attorney. The husband argued that the letter was protected by the attorney-client privilege. The court held that the privilege had been waived:

Husband voluntarily placed this communication in the computer to which Wife had access. This effectively allowed the contents of the letter to be communicated to Wife the same as if Wife had overheard a conversation of Husband with his attorney or had received a copy of a letter from Husband to his attorney.

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In Stafford v. Stafford, 161 Vt. 580, 641 A.2d 348 (1983), the wife retrieved off a family computer a document prepared by the husband, "which appeared to be an inventory and description of sexual encounters with numerous women." The wife also testified to finding a similar list in the husband's handwriting in a notebook, which had disappeared by the time of trial. The husband did not raise any privacy issue, but argued that the document had not been properly authenticated. The court disagreed.

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In a matrimonial action, a federal court held that a husband was not prohibited from using evidence garnered through his installation of spyware on a machine that he and his wife owned and used. Potter v. Havlicek, No. 3:06-cv-211, 2007 U.S. Dist. LEXIS 10677, 2007 WL 539534 (S.D. Ohio Feb. 14, 2007). The husband installed keylogger software and a program that took screenshots, and he also accessed e-mails where his wife had selected the "remember me" function. The wife asserted violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 -2522 ("ECPA"), the Stored Communications Act, 18 U.S.C. §§ 2701 -2712, and a state wiretap statute.