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Can you read your spouse’s email?

When you suspect your spouse of being unfaithful, it can be tempting to check their email, especially if you discover the password without their knowledge. You probably know that it’s an unethical thing to do, but are you aware that it might also violate federal law?

One Chicago woman, Paula Epstein, put an auto-forward on her husband’s email account when she suspected him of cheating on her. The couple was in the process of divorcing when the wife accused her husband, Barry, of infidelity. When his attorney asked for proof, her lawyer presented printed copies of email correspondence between Mr. Epstein and various other women.

He claimed not to know that his wife had access to his emails until then, and alleged that she must have set up his account so that his messages were automatically forwarded to her.

In December 2016, the 7th U.S. Circuit Court of Appeals in Chicago decided that the auto-forwarding amounted to a violation of the federal Wiretapping and Electronic Surveillance Act. One judge noted that Mrs. Epstein’s actions technically fell within the language of the act, although Congress likely never expected it to be used “as a tactical weapon in a divorce proceeding.”

Other federal courts have ruled that the Wiretap Act can only be applied to emails in transit, but the timestamps in the Epstein correspondence made it possible that the emails were intercepted at the time of transmission.

This case is by no means unique. Six years earlier, a Michigan man logged into his wife’s Gmail account because he suspected that she was having an affair. He defended his actions by saying that she left the password in an easily-accessed location, but county prosecutors charged him with felony use of a computer.

As these cases prove, angry spouses can be tempted to monitor the other spouse’s electronic communications, hoping to find evidence of wrongdoing that can be used as leverage in a child custody battle or property division dispute. Doing so, however, can result in federal charges.

State and federal law have been protecting electronic privacy for years. Although the original Wiretap Act was intended to address tapped phones, communication methods have evolved over the years and now the Act joins electronic privacy laws in covering email transmission and storage. It is now illegal to intercept emails and other electronic communication without permission.

No matter how bitter your divorce may be, anger at your spouse should never put you in a position where you may be facing criminal charges. A New York divorce attorney can guide you through the difficulties of a contested divorce without risking an outcome that could jeopardize your access to your children and even your freedom. Jayson Lutzky is a Bronx, New York divorce and family court lawyer. If you are considering divorce or if you already have a case in court, then contact Mr. Lutzky’s office at 718-329-9500. Mr. Lutzky offers free in-office initial consultations.

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