Can my spouse access my email or social media accounts?
Updated: Mar 16, 2020
Marriage Story is an Oscar nominated movie chronicling the divorce process between a husband (Adam Driver) and wife (Scarlett Johansson). A subplot of the movie is the theft of the husband’s emails by the wife. Although not central to the movie the theft of the emails seems to be accepted as both admissible and hurtful to the husband’s case.
In my practice I am often asked about the theft of electronic data from one spouse’s email/social media/communication apps by the other spouse. Our smart phones and tablets often carry our complete digital private life. Our financial, medical, work, and personal records are all a few clicks away.
Whether this conduct is permissible depends on a number of different considerations. For example a non-exhaustive list might include:
Who set up the electronic account?
Who regularly accessed the electronic account?
How was the unauthorized access accomplished?
Who had the password to the electronic account?
How old was the electronic information?
How was the electronic information accessed?
Each state differs on liability for a spouse accessing another spouse’s electronic accounts without permission. I will not examine the different state laws. This article will focus on two federal law: Computer Fraud and Abuse Act (CFAA) and Stored Communications Act (SCA). These two acts were passed long before computers became a regular fixture in the household let alone common in the pockets of most Americans.
The Computer Fraud and Abuse Act (CFAA) was signed into law in 1986. This is a federal criminal law which also allowing individuals to sue others for civil claims. When passed this law addressed large scale commercial computer disruption by organized crime, computer hackers, and unfriendly foreign governments.
While CFAA protects from unauthorized access, the Stored Communications Act (SCA) protects against unauthorized disclosure. Although there is overlap between these two laws SCA is limited by where the electronic information is stored. SCA claims must derive from information held by commercial electronic communication services like Google, Yahoo, etc.
Unauthorized access likely occurs far more often than presented to the courts.
In 2019 the Court of Appeal for the Fourth Circuit addressed the CFAA and SCA in a context of personal relationship. In Hately, the plaintiff (Patrick Hately) sued David Watts for accessing his email account. The email account was Patrick Hately’s student account operated by Virginia Community College System. David Watts obtained the account information from Nicole Torrenzano.
Patrick Hately and Nicole Torrenzano were engaged in a long term intimate relationship. During the course of their relationship Patrick and Nicole shared their email and electronic usernames and passwords with each other. Nicole and David Watts began an intimate relationship. In an effort to help David Watts Nicole provided David Watts with Patrick’s passwords to help David Watts divorce. David Watts accessed Patrick’s email account.
Hately sued David Watts but lost at the trial court. The appellate court reversed finding error in the trial court’s interpretation of the provisions of Stored Communications Act.
Hately demonstrates the application of electronic privacy law on intimate personal information wrongly accessed by former spouse, friend, or family member. Many more cases will follow.
DISCLAIMER: This information is provided for educational purposes only. Laws, regulations, and rules constantly change and information is valid for the date published only. No legal advice is given. No attorney client relationship has been formed by reading this entry. Each case is different and you should consult with a licensed attorney in your jurisdiction before undergoing any legal proceeding.