Reading Your Spouse's Email Could be a Crime

By Wendy Alton

If you haven’t been following the Oakland County, Michigan criminal case against Leon Walker, now is the time to do it.

I previously blogged about the criminal charges pending against Leon Walker: Reading your spouse’s emails: snooping or hacking? (http://tiny.cc/kmm4y). Leon Walker and his wife Clara Walker were living together, but going through a divorce. Leon Walker logged into Clara Walker’s Gmail account on her computer by guessing her password. While logged in, Leon Walker printed a number of emails between Clara Walker and a friend, and theses emails revealed that Clara Walker was having an affair with her second ex-husband. Leon Walker, her soon to be third ex-husband, printed these emails off and gave them to Clara Walker’s first ex-husband, who used the emails as a basis to file an emergency motion for custody of their child.

Leon Walker was charged with violating Michigan law MCL 752.795, which states that a person cannot “intentionally and without authorization” access a computer, computer program, computer network, or computer system, to “acquire, alter, damage, delete, or destroy property.” The same law prohibits spam and viruses. Despite the fact that they were married at the time he accessed her email, and despite the fact that the computer was purchased by him and her password was not always kept a secret, Prosecutor Jessica Cooper charged him with a felony that is normally reserved for serious hackers—and Leon Walker now faces a penalty of up to five years in prison.

Leon Walker appealed his charges to the Michigan Court of Appeals. On December 27, 2011, the Michigan Court of Appeals released its opinion, and upheld the charges against Leon Walker.

The Michigan Court of Appeals determined the following:

1) Leon Walker intentionally accessed the account by guessing her password, and his intention was also revealed by him printing emails and distributing them to a third party;
2) Leon Walker accessed the account without authorization because Clara Walker testified that she never shared her password with him, and he didn’t even use her computer;
3) By accessing Clara Walker’s Gmail account, Leon Walker did access a computer (Gmail email is stored on Gmail servers), did access a computer network (Gmail emails are sent to the user over the internet), did access a computer program (Gmail itself is a program), and did access a computer system (Gmail servers act as a computer system;
4) Leon Walker acquired the emails by viewing, printing and distributing them, which is essentially acquiring property of someone else.

The Michigan Court of Appeals ruled that the criminal charges against Leon Walker should stand, as his actions satisfy the elements of the criminal statute. The case is now sent back to Oakland County so that a trial date can be set. It is unknown if Leon Walker will appeal to the Michigan Supreme Court, and even if he does, even more unknown if the Michigan Supreme Court will hear the case.

What are the practical consequences of this case and this Michigan Court of Appeals ruling? Your email is absolutely private unless you share your password with someone else or authorize them to check your email. If you do not share your password or permit someone access, it is a crime for them to access your account without your permission. This is equally true for strangers as well as for spouses—there is no spousal exception.

If you are going through a divorce, it is best to leave your spouse’s email and facebook accounts alone. The Michigan Court of Appeals has made it very clear that unless permission is given, it is a crime. Oakland County has made it very clear that it will prosecute. It is likely that other counties will follow their lead.

Read the Michigan Court of Appeals case here: http://coa.courts.mi.gov/documents/opinions/final/coa/20111227_c304593_54_304593.opn.pdf.

Read the news articles here:

“E-mail snooper loses appellate bid” http://tiny.cc/ruy7u.

“Michigan man may face trial in computer hacking case” http://tiny.cc/jvlcr.

If you are interested in learning more about family law or divorce, or have a question about those issues, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Reading your Spouse’s emails: Snooping or Hacking?

by Wendy Alton

In my experience as a Michigan divorce lawyer, I have seen countless instances where one suspecting spouse has read the other spouse’s emails, facebook entries, or text messages, discovering that their spouse was cheating on them. These emails or text messages have been brought into my office to prove the affair, and have sometimes been used as evidence in divorce cases.

That may all change this year. Oakland County Prosecutor Jessica Cooper has criminally charged Oakland county resident Leon Walker for doing just that, and the case is set to go to trial, ironically, on Valentine’s Day.

Leon Walker was the third husband of Clara Walker, and suspected that she was having an affair with her second husband. Leon Walker accessed Clara’s laptop (that he had purchased for her), and opened her Gmail account by using her password, which he asserts that she kept in a book by the computer. Her emails revealed that she was in fact having an affair with her second husband.

Leon Walker took those emails and gave them to Clara Walker’s first husband, because Clara Walker had previously told Leon Walker that her second husband had previously beat her in front of her son from her first marriage. Leon Walker then filed for Divorce, and Clara Walker’s first husband filed for custody of their son. Clara Walker turned those emails over to the Prosecutor.

Leon Walker was charged with violating Michigan law MCL 752.795, which states that a person cannot “intentionally and without authorization” access a computer, computer program, computer network, or computer system, to “acquire, alter, damage, delete, or destroy property.” The same law prohibits spam and viruses. Despite the fact that they were married at the time he accessed her email, and despite the fact that the computer was purchased by him and her password was not kept a secret, Prosecutor Jessica Cooper charged him with a felony that is normally reserved for serious hackers—and Leon Walker now faces a penalty of up to five years in prison.

Prosecutor Jessica Cooper has publicly defended her decision to prosecute Leon Walker despite the public outcry and support for Leon Walker. Lawmakers have indicated a concern that this law would be used to prosecute parents for reading their child’s emails, and have indicated that legislation will be introduced to clarify who should be targeted by the law. It appears that lawmakers and the majority of the public share the opinion that this particular hacking law should not be used against spouses.

Unfortunately despite what will happen on the Valentine’s Day trial, the mere fact that Leon Walker was charged under this law should make people cautious about accessing the email & facebook accounts of their spouses without permission, whether or not they are going through a divorce.

If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.