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We learned this week that former Secretary of State Hillary Clinton may have used personal email accounts to transact State Department business.  Chances are you may have read the article and quickly turned back to your office computer to confirm your Saturday night dinner plans or to email your attorney about filing a joint tax return for 2014.

Perhaps your electronic musings don’t have the importance of communications from the Secretary of State, but you should know that the law is clear.  You are entitled to no expectation of privacy if you use an office computer to carry your personal mail.  Zero.  Now some offices do not retain emails that have been sent/received using private accounts such as msn, Comcast or AOL.  But that appears to be a function of how the server works rather than office policy.

Chances are, your employer really doesn’t care if you plan your next vacation on the office computer.  But, there are folks out there who do want to know these things.  People like a former or estranged spouse.  If he or she should decide to subpoena your email account either at the office or otherwise, there is a reasonable chance that the information will be published.  Under Pennsylvania law, if the material is sought pre-trial you will get notice of the request and a chance to object.  But if the information is subpoenaed for trial, you may be learning about this stuff in the courtroom.

Another thing.  Clients commonly email us from office servers (i.e. brendak@bigcompany.com) with information they probably intend to be confidential.  If you are using your office email address, it probably has no protection from discovery in your family law case. On the other hand if sent or received on a personal account, you have a strong basis to contend that this was as private as a telephone conversation and therefore protected from discovery.

So be aware of what account you are using when you email. Don’t permit Ms. Clinton’s problem to become yours.

 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).