Is It a Crime to Read Your Spouse’s Emails?

My mother used to say something to the effect that “gentlefolk do not read each others’ mail.” Of course, she didn’t reckon with spies or spouses in distress. It comes as no surprise to me, a one-time family law prof, that, as the Huffington Post reported yesterday, a Michigan man at odds with his wife got hold of her password and read her emails in order to confirm her affair. Very much a “dog bites man” story, you’d think.

Not so, apparently — thanks to prosecutor Jessica Cooper, who has charged the husband with “felony computer misuse,” which has a maximum penalty of five years imprisonment.

Of course, because this is a family dispute, the facts are mostly allegations at this point, though the husband has gone on US national TV to explain why he broke into his wife’s email account. Some reports have it that he also installed a keystroke recorder on her account.

This side of the border, Criminal Code s.184(1), dealing with interception of communications, seems as though it would apply here to the equivalent behaviour:

Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

There are a number of saving provisions, none of which would clearly apply in such a case — unless it could be argued that circumstances warranted implying the spouse’s permission (s.184(2)(a)), perhaps where her behaviour or that of her lover put the children in jeopardy — though this seems quite a stretch.

I don’t know of a case in Canada where criminal charges have been laid of this kind in connection with a marital dispute. In what circumstances, if ever, would it seem warranted? That is, where would it be appropriate for this to be the only criminal charge?

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Comments

  1. Thanks for that post, Simon.
    I’ve read elsewhere that the charge levied in Michigan relates to

    ‘… unauthorized access to a computer in order to “acquire, alter, damage, delete or destroy property.”’

    I think the parallel in Canadian law is with the hacking provisions in the Criminal Code, particularly s. 342.1:

    Unauthorized use of computer
    342.1 (1) Every one who, fraudulently and without colour of right,

    (a) obtains, directly or indirectly, any computer service,

    (b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system,

    (c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or an offence under section 430 in relation to data or a computer system, or

    (d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c)

    is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on summary conviction. [definitions follow]

    In cases that I’ve been involved with where an employee or personal relation is believed to have gained access to e-mails and the like without authority, the police have consistently said that it would be a civil matter and have turned the complainant away.
    I would suggest that this happens a lot, but the police brush it off.

  2. Simon,
    Just in case my wife reads your post, let me say I doubt this section would apply. To me, the notion of interception refers to a man-in-the-middle type of situation. Recognising that these years of Latin may finally have been worth their while, I would suggest that the etymology of the word supports my theory (inter:between; cipere: catch). Accordingly, once the email is in the inbox, there can’t be any interception. I think this situation is more akin to illegally entering a house (a virtual one that is). That being said, the keystroke logging is certainly an interception.
    All the best to you, Slawers and readers!
    Dj)

  3. There is some US law for the finding that held (on wiretapping charges) that looking at emails once they were stored, i.e. not in transmission, was not caught by wiretapping laws. The decisions have been criticized, and it may be that some courts are pulling back from (or frankly disagreeing with) them. The decisions no doubt rely on some of the targetted US legislation on computer information so may or may not be transferable here. (How much authority does Latin have any more, even for etymological applications?)

  4. Thanks for your comment, David. I did consider s.342.1 but rejected it for the same sort of reason that Dominic gave for doubting my choice: it seems aimed at a different sort of wrong. I considered (naively) that the section related more to such things as tapping into your neighbours internet cable. I suppose that using a computer to access Gmail could be regarded as a obtaining a “computer service” or, alternatively “intercepting” a “function of a computer system.”

    In either case the emphasis seems inappropriate to dealing with email. I should have thought we could draft a better rule emphasizing privacy or theft of information.

  5. I think it all goes to show that there really isn’t a provision in our criminal law that hits these circumstances head-on.

    It may be arguable that an unread e-mail message in an inbox is “intercepted” if it is read before the intended recipient gets it, as one might argue with intercepting a letter from a mailbox before the addressee picks it from the physical mail box. Reading a message after it is received may be akin to lifting it from the table in the front hall where the recipient has left it after having read it.

    I query, as well, whether reading someone’s e-mail to get dirt on them in a spousal dispute is “fraudulently and without colour of right”. I don’t think there would be as much difficulty in making such a finding if it were some malevolent cracker trying to get into a banker’s e-mails to perpetrate some other sort of crime.

  6. Aside from the ‘intercepted’ issue, is there any argument that a person trying to find out if his or her spouse is having an affair has some ‘colour of right’ to be looking at the spousal emails? Adultery is not a crime, but in general spouses at time of marriage (common-law unions may vary) involve some public promise of fidelity. Does that matter? Might it matter to a jury trying a prosecution under s. 342.1?

  7. The thing is -and I’m not a lawyer I just dabble in this knowledge- that terrorist don’t send messages anymore, they started writing messages and then saving them, spreading the password around and so the message is never sent. That is why the provision,

    (d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c)

    the word uses and posses find themselves to be the centerpiece of it all.

    That is, as far as I know, one event where no mail was intercepted, simply having the password or using it to log into an account which isn’t yours can be judged a crime, for easier prosecution of terrorists, leading to easier prosecution for civil.