ELECTRONIC EVIDENCE: IS IT ADMISSIBLE?

Ok, don't laugh.  But when my ex and I went into our divorce, he forgot that I had the password to his email account because I basically set up his account.  

Or, maybe he didn't forget.  My other theory is that he knew that I had the password to his email account, but he didn't care because he was immune to any challenges and every time we went to court he was winning.  So he didn't care if I knew his password or not because he figured I couldn't do anything with the information I got from his account anyway.  And, in most ways, my X has been right about that. Still, I have felt better having the information that access to his email account gave me.  

Meanwhile, there did come a time when I decided that I was going to present to the court some of the emails I'd obtained.  Did I have to be concerned about any legal consequences in the same way I did when I considered tape recording phone calls with my X?   The answer to that question is: It depends.  

When you intercepted the emails were they in transmission or were they stored in the computer? According to the Electronic Communications Privacy Act of 1986 there are criminal and civil penalties for the unlawful interception of electronic communications while such communications are in transit. In that situation, you can be charged with wiretapping.  However, once an email is stored and downloaded into the computer's memory, it is no longer subject to wiretapping.  See Steve Jackson Games, Inc., et al. vs. United States Secret Service 36 F 3d 457 (5th Circ. 1994).  

If it isn't wiretapping, could looking at your X's email be considered an invasion of privacy?  An invasion of privacy occurs when a person intentionally intrudes upon the private affairs, seclusion or solitude of another person by means that would be highly offensive to a person of ordinary sensibilities.  An invasion of privacy would consist of opening someone elses' wallet or taping someone elses' phone conversation without authorization.  

The operative concept is the question of authorization.  In White vs. White 781 A 2d 85 (N.J. Super 2001) for instance, the Court determined that there was no invasion of privacy when Mary White accessed William White's emails.  The Court's reasoning was that because both spouses had access to the computer since it was stored in the family home, there could be no expectation of privacy on Mr. White's part.  In other words, in these circumstances Mary White was, indeed, authorized to access the computer and thus the emails stored in it. 

However, keep in mind that email evidence is admissible even if it were illegally obtained because there is no express provision in the wiretapping laws stating that information acquired under these circumstances is not admissible.  This means that, as a general rule, the fact that electronic evidence is obtained illegally is generally not a sufficient reason to exclude it from admission.  In fact, the Court has held that even electronic evidence obtained fraudulently, wrongfully or illegally is admissible.  See Lee v. Lee 967 S.W. 2d 82 (Mo. Ct. App. 1998); Gurevich vs. Gurevich 24 Misc. 3d 808, 886 N.Y.S. 2d 558.  

So, the answer to the question is, yes, there could be some consequences to obtaining electronic evidence without your X's permission, but there appear to be ways to make admissible in Court the information you obtain through these emails.  My best guess is, go in, see what you get, make sure you consult with your attorney before you make a move.  Good luck!