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January 9, 2011

Marriage and the Expectation of Online Privacy

A Michigan man, Leon Walker, was recently charged with invasion of privacy after reading his wife's email on a computer they shared. He confirmed his suspicion that she was having an affair, but now he is facing the possibility of serving up to 5 years in prison. Walker, in his defense, has stated that he and his wife shared the computer and that she left her email passwords in notebooks around the house. We'll have to wait and see what the Michigan jury decides about this case, but what is a spouse's expectation of online privacy in New York?

This issue was previously discussed in the 2009 case of Gurevich v. Gurevich where a husband wanted to prevent his wife from presenting evidence in their divorce case that she obtained from reading his email. The wife claimed that the husband had provided her with his password during the marriage and that he neither revoked her use of it, nor changed his password after they separated. The wife suspected the husband was hiding income and her suspicions were apparently confirmed when she read his emails. The Kings County Supreme Court found that the emails were admissible evidence because they did not violate New York Penal Law section 250.00, which prohibits individuals from intercepting communications going from one person to another. Because the emails in question were stored in the email account, and were not "in transit," the Court found there was no violation of the statute prohibiting "interception." The Court also noted that there is no New York statute that provides for an implied revocation of passwords upon the commencement of a divorce action.

A simple lesson can be learned from both of these cases: You need to take responsibility for protecting your own privacy. If you don't want to share information contained in your email, facebook and text messages, you either need to keep your passwords private in the first place, or if you think your spouse (or ex-spouse) has reason to know what those passwords are, you need to remember to change them.