We’ve all been there — said something or photographed something in an email or posted on-line, that we wish we hadn’t. If you’re hoping this article will make you feel better about it, I hate to disappoint. Now add to the list of ways that the past can come back to haunt you, your spouse taking your laptop and using the contents of its hard drive in a divorce litigation.
According to several trial courts, its perfectly fine for your spouse to invade personal files and use the contents against you, so long as he or she is authorized to access the computer. And authorization is easy to get, since all it takes is for the computer to be used by the children on occasion. In one case, the children used the computer to do their homework; in another, they
watched Thomas the Tank Engine videos. It does not matter that the children are only allowed access to the computer under adult supervision; and according to one court, it also does not matter that the husband’s email account was separately password protected. In all cases where courts have found that the computer was used by children, it gave carte blanche to the other
spouse to full access to the computer, including password protected email, even if you never breathed a word authorizing your spouse to use your computer.
You might say Wait! isn’t it illegal to intercept communications between third parties? How can my spouse intercept my emails? You’re right, he can’t. It is illegal to wiretap or intercept an electronic communication, including emails, but only if the communication is in transit when it is intercepted. Gaining access to a hard drive where emails are stored is not the same thing, since the communication is no longer “live” and capable of being intercepted.
A lot turns on whether the kids have slobbered on the laptop. Another interesting feature is impunity from criminal computer trespass and related criminal charges involving computers. These charges require unauthorized access to the computer. Even if you never gave your spouse permission to use your computer, courts have found that the children’s use of the computer was sufficient to confer authorization on the spouse in the context of criminal charges. Of course, with so many potential felonies hanging in the balance, if your thinking of grabbing your husband’s laptop to search for pornography, be sure that there is more than just jelly stains on the computer to prove the kids use it. You want more than your word against your spouse’s word. With so much at stake, it wouldn’t hurt if the hard drive also had videos starring trains with English accents.