These days it goes without saying that intercepting email is a violation of the law. Although the occasional hapless employee is surprised to learn that his or her employer can lawfully view personal emails sent or received on office equipment, by and large, most people know to avoid overt efforts at intercepting communications. But what about spouses with two or more email accounts offered by a service provider’s family plan, where one of the spouses knows the password of the other spouse? Does access to the other spouse’s account, directly or by forwarding, violate the law?
A recent decision by Federal District Court Judge Vincent Bricetti in Zaratzian v. Abadir, SDNY 9/2/14, illustrates what can happen when a shared email account is not closed until long after the parties have separated. In Zaratzian, the husband (Adel Abadir) opened an email account for the wife (Annabelle Zaratzian) in 2003, two years before they separated. Because Ms. Zaratzian was unfamiliar with computers, Mr. Abadir configured her new email account and set her password. There was no question that she authorized him to do so. Before they separated in 2005, the husband enabled the auto-forwarding function. Although he claimed she agreed to this so that he could keep track of the children’s extracurricular activities, she disputed that she ever consented to this.
It should not be hard to guess where this ended up. Ms. Zaratzian took over the email subscription (Cable Optimum) in November 2005, after the parties’ separation earlier that year. In 2009, she realized that her former husband’s email account was still open on the plan and canceled it. But by then the damage had been done. Mr. Abadir had intercepted an email from Ms. Zaratzian’s accountant containing an attachment of her 2008 tax return and used it against her in a 2010 Family Court support proceeding. Federal litigation ensued with multiple claims, some of which involved the federal Wiretap Act (18 USC Ch.119) which prohibits the interception of electronic communications and allows for compensatory and punitive damages, as well as reimbursement of attorney’s fees.
Mr. Abadir applied for summary judgment, hoping to dismiss the federal Wiretap claim on the grounds that Ms. Zaratzian had consented to his access to her email account. Although the Wiretap Act prohibits any interception of electronic communications, the plaintiff’s “prior consent to such interception” is a complete defense. Ms. Zaratzian conceded that she had consented to Mr. Abadir setting up her email account and setting her password. Obviously, this initial consent allowed Mr. Zaratzian to view her emails. It even allowed him to go into her account and enable the auto-forward function, which he did. The dispute concerned the scope of the consent conferred by that initial consent. Was it intended to last indefinitely, even after their separation? Judge Bricetti thought not: “The Court is not persuaded the permission Zaratzian gave Abadir to set up her email account and choose a password for her constitutes ‘wholesale’ consent to Abadir reading her personal emails in perpetuity…” Disagreeing with Mr. Abadir’s argument that Ms. Zaratzian’s consent was necessarily unqualified, the Court denied Mr. Abadir’s application for judgment dismissing the claim. This does not mean that Mr. Abadir has lost the case. It just means that the case will go all the way through trial, and a jury will now get to decide just what Ms. Zaratzian meant when she gave that consent.
This is not good for Mr. Abadir, or for anyone else who might find himself in his position. Juries can be a fickle bunch. Quite possibly the jury will agree with Ms. Zaratzian, that she did not intend her consent to last forever. Surely, common sense comes into play. If you allowed your spouse to set your password while you were (more or less) happily married, would you expect that to continue until long after your marriage was dissolved?
It’s hard to argue with common sense. Best to avoid the trouble, and sever all ties when separating, including email accounts.