Court: Husband’s Access of Wife’s Email to Obtain Information for Divorce Proceeding is not Outrageous

[Post by Venkat Balasubramani]

Miller v. Meyers, 09-cv-6103 (W.D. Ark.; Jan 21, 2011)

This case presents another fact pattern involving an increasingly common twist to the modern divorce proceeding – someone surreptitiously accesses his or her spouse’s email and on-line accounts to gather information to be used in a family law proceeding. The now ex-spouse brings a claim for violation of statutes protecting the privacy of communications. Here, the ex-spouse gets summary judgment on her Stored Communications Act claim, and the parties shortly settle after the court’s ruling.

The facts were straightforward. Anna Miller alleged that Darin Meyers used a keylogger program to access information and communications from Miller’s on-line accounts, including email accounts. The parties resolved their differences in family court and entered into a settlement agreement. After finding out that Meyers accessed her emails, Miller brought claims against Meyers under the Computer Fraud and Abuse Act, the Stored Communications Act, the ECPA, and under state law.

The divorce settlement: Meyers argued that the parties resolved all of their claims in the divorce settlement, but the court rejects this argument. The court points to language in the agreement to the effect that the settlement was only intended to compromise the parties’ claims “arising out of [the divorce] litigation.” The court also notes that the family law court would not have had jurisdiction over plaintiff’s claims anyway, so it’s not reasonable to think that they would have resolved those claims by virtue of the divorce settlement.

Computer Fraud and Abuse Act: The court denies summary judgment to both parties on the CFAA claim, noting that there is a factual dispute as to whether plaintiff suffered $5,000 in damages due to the unauthorized access. Plaintiff did not argue that the use of improperly obtained evidence harmed her in the divorce proceeding, and the court may not have accepted this argument anyway. (Courts are across the board on what type of damage can be used to satisfy the $5000 jurisdictional threshold, but it looks like there were factual disputes either way.)

Stored Communications Act: The Stored Communications Act claim was open and shut. Defendant admitted he accessed the emails, and he clearly did not have permission to access plaintiff’s email account. Plaintiff gets summary judgment on this claim, and the court saves the damages ruling for the factfinder.

ECPA: The court rejects plaintiff’s ECPA claim, finding that plaintiff put forth no evidence that defendant “recorded any information during the course of monitoring,” and in any event, through use of the keylogger software defendant only obtained the passwords and would have only opened the emails after they reached plaintiff’s account. Interestingly, the court notes that there was “some indication that plaintiff was aware, or should have been aware, that defendant was monitoring her.” The court does not specify what evidence defendant presented in support of this proposition (apart from the general theory that someone can monitor activity on computers in their home), and imputing consent based on a supposed expectation of monitoring seems to push the consent exception pretty far. The court also does not discuss the issue of whether the capture of the passwords themselves could have constituted an interception. (See “Scope of Electronic Communications Privacy Act may not be so narrow” (discussing Brahmana v. Lembo, No. 09-106, 2009 WL 1424438 (N.D. Cal. May 20, 2009).)

State law claims: The court grants plaintiff summary judgment on her computer trespass claim, but finds that there was no evidence at the summary judgment stage of what injury she suffered. The court defers the damages ruling for trial. The court grants defendant summary judgment on plaintiff’s unlawful access to a computer claim under state law, declining to find a private cause of action where the legislature did not clearly provide for one. Plaintiff asserted a breach of contract claim based on a breach of non-disclosures of the settlement agreement. The court finds that factual disputes preclude an award of summary judgment in either party’s favor.

Finally, the court rejects plaintiff’s claims for intentional infliction of emotional distress, finding that defendant’s conduct was not shocking or outrageous. Here the court throws out a zinger:

Defendant’s conduct of monitoring the internet traffic on his home network and using a keylogger to access his then wife’s emails, and then using copies of those documents in divorce and custody proceedings is not extreme and outrageous conduct. A husband prying into his wife’s email, after learning that she was engaging in conversations and photo sharing, and then using damaging emails in a divorce and custody proceedings can hardly be considered “extreme and outrageous,” “beyond all possible bounds of decency,” or “utterly intolerable in a civilized society.”

Say what? I guess all is fair in love and war (including violating federal statutes), in this court’s view.

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Apart from the court’s interesting views on the outrage claim, there’s not much to say about this case. The court notes that the underlying evidence which was improperly obtained was used in the family law proceeding (apparently without objection or scrutiny from the court), and I wonder how often this occurs.

In any event, the case is a good opportunity to repeat the PSA: accessing someone else’s emails or accounts is not necessarily a good idea, as tempting as it may seem. It doesn’t matter if the person whose email you access is your employee, spouse, or best friend! Also, using keylogger software is risky. Keylogger software should come with a disclaimer that tells you to consult with counsel before deploying it.

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