Email is one of the primary ways that we communicate today. If you are suspicious of your spouse’s activities, or just thinking about separating and looking for information that might benefit you, checking your mate’s email messages is likely one of the easiest ways to keep tabs on his or her activities. Not only might you find racy emails between your spouse and a paramour, you might find hotel confirmation emails, paperless credit card statements, or legal and financial information that your spouse was hiding. Between computers, phones, and tablets, it might be easy to sneak a peek at your spouse’s inbox. But is it legal? And if you find something useful, can it help you? It depends on your situation…
One way that you can get into another person’s inbox is to use spyware. This is software that “spies” on the computer on which it is installed. There are different types of spyware — some send you copies of emails that go in and out of the target’s mailbox, some track internet usage, and some capture every single keystroke. Depending on your level of tech-savvy, spyware can be cheap, easy to use, and hard to detect. It is also, however, illegal. Various types of spyware may violate ECPA Title I, Title II, or both. Don’t waste your time on this type of snooping — your attorney won’t even want to hear what you find out if it was obtained illegally.
Title II of the ECPA covers unauthorized access to electronic communications that are held in electronic storage. This means that unauthorized access to emails stored on your spouse’s computer, phone, or tablet is illegal under Title II. Thus, the question to ask yourself if you’re considering email snooping is: “Am I authorized to access my spouse’s email account?” This may seem like a simple question, but it can be quite tricky.
Whether your spouse’s work computer is at the office or at home, you should refrain from snooping. A work computer might contain sensitive client or other work-related information, in both email and other files and programs. Your spouse’s privacy is not the only concern — other’s people’s privacy may be violated as well. The potential for illegally or unethically exposing confidential information is too high — just don’t do it.
If your spouse isn’t creative or careful in creating passwords, you may very well be able to guess the password or answer the security questions to gain access to email. Again, the important question is whether you have authorization to look at the email account. Just because your spouse is predictable or you have a great memory, does not mean that your spouse has given you authorization. Thus, this type of access would not be permitted under Title II.
Imagine that your wife is travelling for work and realizes that she has left an important document on her laptop at home. She calls to ask you to log in and email the document to her, and she gives you the passwords to do so. She gave you permission and passwords to use her computer, so you must be authorized to take a peak at her email a week later when she leaves her laptop at home again, right? No; your authorization was limited in time and purpose to the day she asked for your help and the documents she asked you to find. If you go searching through the hard drive and emails a week later, you do so without authorization and in violation of Title II.
If, however, your spouse gave you her email password, knows that you have it, and knows that you use it regularly, you may have authorization. If she changes her password without telling you the new one, then your authorization is likely revoked. The difference between the situations described above is between a pattern of acknowledged access (probably authorized), and an isolated grant of access followed by unacknowledged reentry to the account (probably unauthorized). Obviously, the question of authorization can become very complicated under some circumstances, and both parties might have strong arguments that access was or was not authorized. When in doubt, talk to your lawyer, and ask yourself whether peeking at your spouse’s email feels like spying. If it feels like you are invading your spouse’s privacy, then you probably are.
Smart Phones and Tablets
Do the rules for checking your spouse’s email change if the access is on a phone or tablet? You don’t need a password to open the email app, so it’s basically wide open and fair game, right?
This issue also comes down to authorization. If your spouse gave you the passcode to unlock the phone and knows that you use the phone with some regularity, then tapping to open the email app is probably authorized. But if you merely guess the passcode and normally do not use the phone, then you are still not authorized to snoop through the email or other programs. Also, you must be very careful about your spouse’s work emails that may contain confidential information about your spouse’s work or clients.
Technology and tech security are always changing, so there is always gray area about whether access is authorized under the circumstances. Once more, the best course is to ask yourself whether it feels like you are snooping and invading your spouse’s privacy. If so, err on the side of caution and stay out of the email!