Over the past few weeks, an interesting story emerged about a Michigan husband, Leon Walker, who is facing felony charges stemming from his use of his wife’s Gmail password to access her email account and learn about her extra-marital affair. Mr. Walker used his wife’s computer – which was kept in the house, used by Mr. Walker on a regular basis, and in the same location where she kept her passwords in a notebook labeled “passwords” – to access her emails and confirm his suspicions that she was having an affair with her ex-husband who had abused her and her child – it is quite a story.
Mr. Walker’s investigative efforts earned him a felony charge under a Michigan statute designed to combat identity theft. Mr. Walker’s trial is scheduled for February and, in addition to a privacy issue, it also raises the question of what constitutes good “pre-litigation discovery” in a family law case and what bleeds into criminal conduct.
While Pennsylvania has identity theft laws (18. Pa.C.S.A. § 4120), the law that more closely resembles the charge levied against Mr. Walker is 18 Pa.C.S.A. § 5703 which prohibits the intentional interception of wire, electronic, or oral communication. In short, § 5703 is Pennsylvania’s wiretapping law and it is classified as a third-degree felony (though the lowest of the felony classes, a third-degree felony carries a possible sentence up to seven years in prison).
Whether Pennsylvania’s wiretapping law would be used to prosecute someone accessing their spouse’s email is unclear. It is worth considering, however, whether accessing your spouse’s personal, password protected email account in order to obtain information is comparable to “intentionally [using]…the contents of…electronic communication…knowing…that the information was obtained through interception of a wire, electronic or oral communication” § 5703(3).