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5 Years of Jail Time Possible for Accessing Spouse's Email

For Immediate Release | Jun 06, 2012

In an age of instant communications, the temptation to see who your significant other is emailing, 'Facebooking,' or messaging is sometimes just too great. However, it is likely illegal under current Michigan law.

On June 1, 2012, the Michigan Supreme Court let stand charges under the Fraudulent Access To Computers, Computer Systems, and Computer Networks Act, Public Act 53 of 1979 against a husband who accessed his soon-to-be ex-wife's email account. Under the relevant provision, "a person shall not intentionally and without authorization or by exceeding valid authorization to either:

1.) access or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network, or

2.) insert or attach or knowingly create the opportunity for an unknowing and unwanted insertion or attachment of a set of instructions or a computer program into a computer program, computer, computer system, or computer network, that is intended to acquire, alter, damage, delete, disrupt, or destroy property or otherwise use the services of a computer program, computer, computer system, or computer network.

This is commonly known as an "unauthorized access" charge. It is a felony punishable by up to five years in prison and/or a fine of up to $10,000.

The facts of the pending case are straightforward. Wife filed for divorce from her third husband. The wife has a popular web-based email account. She never shared her password. It is alleged that the wife had communicated to a friend by email that she was having an affair with her second ex-husband while married to the third. Her soon-to-be third ex-husband apparently "guessed" the wife's password and gave copies of the emails regarding the affair to the first ex-husband. The first ex-husband then used the emails as evidence in a custody hearing.

The Oakland County Prosecutor brought charges against the soon-to-be third ex-husband alleging that accessing the soon-to-be ex-wife's email account without permission was a criminal act - namely a charge of unauthorized access.

The Michigan Court of Appeals ruled in late December 2011 that there was enough evidence to allow this case to go to trial. Last Friday, the Supreme Court allowed the Court of Appeals' ruling to stand.

Many questions have arisen from the language and interpretation of this criminal statute.

Justice Marilyn Kelly of the Michigan Supreme Court noted the defendant's argument that a parent could be convicted for monitoring his or her child's Internet and e-mail usage. Or a person could be convicted for using the calculator or word-processing programs on his or her spouse's computer without permission under the plain language of the statute. Additionally, Justice Kelly noted that this law is 33 years old and last amended 16 years ago. This is long before the prevalence of the internet in our daily lives. This case, notes Justice Kelly, "raises a significant question about whether Internet-based e-mail accounts fit within the statute's reference to "a computer program, computer, computer system, or computer network."

Currently in committee in the Michigan Legislature is a bill to amend this law to allow for both a 'spousal' and 'child' exception to the crime of unauthorized access. The proposed change, made by Representative Tom McMillin of Rochester Hills, would prevent criminal charges against a spouse if certain requirements are met. The amendment specifically includes "electronic mail service." However, the amendment is silent as to the definition of "spouse."

The 'child' exception would also prevent criminal charges against a parent accessing his or her child's' email and computers with far less requirements.