THE BLOG
01/04/2011 04:10 am ET | Updated May 25, 2011

Do Married Couples Have a Reasonable Expectation of Privacy in Their Email Messages?

By now we've all heard about Leon Walker, 33, who is facing felony charges of computer misuse after he logged onto a home laptop he shared with his now-ex-wife, Clara Walker, to access her Gmail account, where he found she was having an affair.

Walker was charged under a Michigan statute typically used to prosecute crimes for identity theft or stealing trade secrets. He claims he was trying to protect the couple's children from neglect and calls the criminal charges a "miscarriage of justice."

Walker's fate will depend in large part on the complicated legal and societal question of whether married couples have a reasonable expectation of privacy in their respective email accounts. This question in turn depends on the scope and limitations of the enigmatic Right of Privacy.

Under the Fourth Amendment, every person has "a subjective expectation of privacy...that society accepts as objectively reasonable" which allows us to control our autonomy, dignity, and serenity, including the right to conduct "personal activities without observation, intrusion, or interference," as determined by "established social norms."

An invasion of privacy occurs when someone penetrates some zone of physical or sensory
privacy or obtains unwanted access to data by electronic or other covert means. The expectation of privacy must be "objectively reasonable," which depends on such factors as the identity of the intruder, the extent to which other persons had access to the subject place, and could see or hear the plaintiff, the means by which the intrusion occurred, the "customs, practices, and physical settings surrounding particular activities" and the opportunity to be notified in advance and consent to the intrusion.

The alleged intrusion must also be "highly offensive" under the particular circumstances,
which depends on the degree and setting of the intrusion, and the intruder's motives and
objectives. One must show that the intrusion is so serious in "nature, scope, and actual or
potential impact as to constitute an egregious breach of the social norms." The law provides no
bright line on "offensiveness" and each case depends on its own facts. But no invasion of privacy occurs if the intrusion is justified by an important competing interest.

The Supreme Court has said that "What a person knowingly exposes to the public, even in
his own home or office, is not a subject of Fourth Amendment protection." For example, in a
1979 case, the Supreme Court held that the police could install a pen register at the telephone
company's offices to record the telephone numbers dialed by a criminal suspect. The Court
reasoned that an individual has no legitimate expectation of privacy in the numbers dialed on his telephone because he voluntarily conveys those numbers to the telephone company when he uses the telephone. A "person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Did Clara Walker have a reasonable expectation of privacy in the email account on a laptop
she shared with Leon, and if so, is he guilty of a felony, facing up to five years in prison, for
logging into her account without her express permission?

Leon's fate will depend not only on a subjective look at how he and his ex-wife conducted
their marriage and what boundaries they set for each other (about which we know next to
nothing) but also on an objective examination of the norms and habits of married couples
throughout the country and how they are dealing with personal communications, including email, Facebook, Twitter and the like.

Are there any consistent standards of privacy or secrecy observed between husbands and
wives generally? In 2001, Reader's Digest conducted a survey of 1000 married people, half
men and half women. Asked if they ever keep any secrets from their spouses, 42% of husbands
and 36% of wives said they did. Twenty percent of all respondents harbored a secret dream, but
didn't share it with their spouse, including starting a new career (41%), living in a different place
(53%), having an affair (14%) or getting a dog (10%).

Asked if couples should tell all, one husband, married for 40 years, responded, "Yes,
definitely, absolutely, lay it all out, the good with the bad," while a wife of 33 years said, "Tell
as much as you can until you get 'I don't want to go there' signals," but another woman
counseled, "You cease to be a person" when you tell all.

Recent online comments exposed the same wide range of opinion from "It depends on the
secret, but in general I believe that spouses should not keep secrets; this is your soul mate and
best friend" to "Practically, though, being truthful doesn't mean telling your mate everything"
to "Everyone needs privacy, married or not."

How can a Michigan jury decide beyond a reasonable doubt whether Clara had "a subjective
expectation of privacy" which "society accepts as objectively reasonable" based on the "customs,practices, and physical settings surrounding particular activities" and whether Leon's intrusion was "highly offensive" and so serious in "nature, scope, and actual or potential impact as to constitute an egregious breach of the social norms," especially if they find that he was indeed trying to protect the couple's children from neglect?

But this case raises even more profound questions about the relationship between married
couples and the law. Do we really want the government, through criminal prosecutions, to
police the honesty between husbands and wives? On pain of going to jail, do we really want
prosecutors, judges and juries to sit in judgment over whether a spouse has crossed the imaginary and illusive line that demarcates the zone of privacy defined by the subjective expectations of the other spouse?

Until 1965, under the laws in many states married couples could go to jail for using
contraceptives. That year, in the landmark case of Griswold v Connecticut, the Supreme Court
struck down such laws as a violation of the constitutional right of marital privacy.

Whatever happens to Leon Walker at his trial next month, the bigger question remains
whether our society is prepared to use the criminal law to address marital disputes over the
proper boundaries of privacy, secrecy and trust.


Stephen Rohde, a lawyer in Los Angeles specializing in constitutional law, is the author of
American Words of Freedom and Freedom of Assembly

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