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Email - Improper Access

Do computer “unlawful access” laws exempt improperly accessing a spouse’s account?

Short answer: No.  This case got considerable media attention and outrage when it was first reported.  A man accessed his wife’s email without her consent.  They were separated.  He was charged with violating the Michigan’s computer unlawful access law, MCL 752.795, which is similar to the federal Computer Fraud and Abuse Act (CFAA).  Now a court of appeals has rejected the spouse’s argument.  From the Detroit Free Press:

A Rochester Hills man charged with a 5-year felony for reading his wife’s e-mail pledged today to take the matter to the state’s highest court after a lower court refused to dismiss the charge.

In a written opinion released this morning, the Michigan Court of Appeals rule that Leon Walker should proceed to trial on charges that he gained unlawful access to his then-wife Clara Walker’s Gmail account in the summer of 2009.

His 2010 arrest prompted widespread outrage and a national debate about computer privacy in the marital home. But in today’s decision, the three-member appellate panel said Michigan’s computer hacking law has “no spousal exception,” and the law as written applies to Walker’s case. The judges also noted discussions in Michigan’s legislature to amend the law to exclude spouses.

“However, unless and until such legislation occurs, this court is left with the statute as written,” the court said.

The opinion is here.  From the opinion:

Second, there was evidence that defendant acted without authorization when he accessed his estranged wife’s Gmail account. Defendant’s wife testified that her Gmail account was a personal account and that she never shared her passwords for the account with defendant or granted him permission to access the account. Further, she allowed defendant to use her computer only when it needed a repair. Defendant admitted to the police that he accessed his wife’s Gmail account by guessing her password. These facts support a reasonable inference that defendant lacked authorization for his access of his wife’s Gmail account.

It seems to me that spouses should not be given special exemptions to hack into each other’s accounts.  Breaking into one’s private accounts is a violation no matter who does it.  Even spouses are entitled to have private accounts and things, and the law should protect them.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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