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.