We tend to think that the use of computer software available on the internet could not possibly result in criminal charges brought against the party using it.  But on Friday October 7 a Court in Delaware County found a man guilty of using Eblaster “spyware” to intercept his Father’s electronic mail because he did not approve of his father’s social relationship with a woman.

We have noted earlier that Pennsylvania has a highly restrictive wiretapping law. The statute is many years old and as such, has not kept pace with explosion of electronic equipment and software intended to capture written messages whether published as email or text messaging. But, suffice to say that if you are using a device to intercept any form of electronic communication, you are in territory where you may be committing a crime no matter how pure you perceive your motives. I f you feel that you must do this for whatever reason, it would be wise to consult with an attorney familiar with both state and federal laws governing these subjects before you begin your project.

 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). 

Events of this past week have revealed a dangerous trend. For those with children who are school age psychologists are reporting an epidemic of conduct they term cyber-bullying.  The concept that one child could effectively bully or coerce another through computer or cellular phone contact seemed attenuated. Until this week anyway. Because what this writer has seen in the past week is three instances where adults have been completely intimidated by a spouse or former spouse. In each instance the method employed was either email or, perhaps more ominously, text messaging.  In each instance the victim was a highly educated professional; the very kind of person one would think least likely to fall prey to bullying of any kind. 

But in three separate instances involving six bright people, we have seen one person drive another to the edge of distraction.  In two instances the core element was a dispute over management of children born to a relationship.  In the third however, we saw nothing more than a dating relationship gone bad and one participant’s efforts to use email and text messaging as a means to try to keep the relationship going.

Could this really occur with adults? Picture yourself in a situation where you are coming out of a painful divorce.  You have recovered your own time; time to work; to think; to reflect; to relax. But just as you are trying to do those things; your phone is ringing.  Each time it is a demand, a direction, a demeaning comment. Often it is a challenge to whether the parent receiving the message cares about the children.  Sometimes it is just a terse dismissal seeking to deny the recipient the dignity of self worth. Any one of these messages; any two or three could be dismissed.  But when the messages do not stop the sense that one is in control starts to slip away.  The fact that these messages come electronically is almost more insidious. There is no ability to instantly respond.  Yes, one can type and send a reply.  But that does not mean the response was received or read. The attacks can be unrelenting as one can send dozens of messages every hour.

A month ago I would have been skeptical about this.  After all, one can simply turn the machine off.  But we are addicted to mobile communication devices.  Sit in any meeting today and watch the adults as they reach for the Blackberry or the cellphone and until we learn to master these devices People will take advantage of them to hammer away at others.

We pride ourselves on being current.  Electronic devices allow us to do that.  Whether it is the Yankee Oriole game, when a child gets off the bus or the price of gold on the Comex, we want to know and know now. But those of us who are adults can remind ourselves that 95% of the information we are recovering is fairly useless background. We boarded buses at 7:30 AM and our parents did not hear from us until 3:30 PM.  We found out about the game by reading the paper or watching the news. We did not even know what Comex was.

The purpose is not to inveigh against the Blackberry or email. In fact they can be extremely useful tools in communication. But, in the wrong hands these devices are being employed by manipulative and angry people to control your life. The result is that intelligent and well educated people lose all sense of perspective because others insist on using these devices for no purpose other than intimidation. We need to master technology before others use it to master us.