An often-stated truth is that you shouldn’t access the email of others. Here, “others” means the person you have divorced, are now divorcing, or plan to divorce in the not too distant future. No matter how often this is said, it’s always worth repeating. Don’t snoop in other people’s email accounts!
Like most things, it’s more complicated than that. For instance, there are some minor exceptions, such as “authority to access.” Were you ever granted permission to access the email account? Was authority granted and later rescinded? If you’re even the slightest bit unsure of the answer to these important questions, then the answer is, of course, do not access the account!
However, what happens when this access to information is applied to all the information out there on the web? Is it possible that you could get in trouble for accessing someone’s social media accounts, if they have rescinded permission for you to do so?
Wiretapping isn’t just for telephones anymore
In a previous blog post, The 7 Deadly (Tech) Sins of Divorce – Part 1, I explained about Massachusetts’ state’s wiretapping statute. This addresses things like reading your spouse’s emails (intercepting them), listening in on calls and recording calls. There are also Federal Laws to be aware of as well.
One such law is casually known as the Computer Fraud and Abuse Act (CFAA). A recent federal court decision has potentially chilling ramifications far beyond impact on internet companies. The decision could impact individuals getting divorced as well. Interestingly, the case, Facebook v. Power Ventures et al has nothing to do with divorce or private individuals embroiled in their own personal problems. The case was heard in San Francisco because that’s where much of the tech litigation takes place. It pitted the internet leviathan Facebook against Power Ventures, an internet company who was monetizing its contact management product in an arguably parasitic manner. Facebook got mad and sent a cease and desist letter. The Parasitic Contact Management Software Company neither ceased nor desisted and Facebook sued, citing CFAA. Facebook won.
A cadre of legal minds far smarter than mine see incredible problems for corporations nationwide with the Judge’s ruling in the case as well as her rationale.
Wait, can it be illegal to go on a website?
For individuals, I see problems too. If it is a civil and potentially criminal violation of a Federal Law (CFAA) to access a website after the site’s “owner” has said “no access” – then there are pitfalls everywhere.
What if I tell someone not to look at any of my social media? I don’t block anything, I simply send a letter saying, “Don’t go there.” If the someone then goes there, have they committed a federal crime? What about a no trespass order or anti-stalking order or Restraining Order? Do they have any impact?
The issue is new but the ramifications are potentially disastrous. As attorneys, we can no longer simply say, “Don’t access someone else’s email or password protected information.” Err on the side of caution. Now we should say, “Don’t look at anything, private and public.”