How Much Privacy Should You Expect In A Marriage?

http://www.freep.com/article/20101226/NEWS03/12260530/Is-reading-wife-s-e-mail-a-crime?-Rochester-Hills-man-faces-trial
A Rochester Hills man faces up to 5 years in prison -- for reading his wife's e-mail.

Oakland County prosecutors, relying on a Michigan statute typically used to prosecute crimes such as identity theft or stealing trade secrets, have charged Leon Walker, 33, with a felony after he logged onto a laptop in the home he shared with his wife, Clara Walker.

Using her password, he accessed her Gmail account and learned she was having an affair. He now is facing a Feb. 7 trial. She filed for divorce, which was finalized earlier this month.

Legal experts say it's the first time the statute has been used in a domestic case, and it might be hard to prove

"It's going to be interesting because there are no clear legal answers here," said Frederick Lane, a Vermont attorney and nationally recognized expert who has published five books on electronic privacy. The fact that the two still were living together, and that Leon Walker had routine access to the computer, may help him, Lane said.

"I would guess there is enough gray area to suggest that she could not have an absolute expectation of privacy," he said.

About 45% of divorce cases involve some snooping -- and gathering -- of e-mail, Facebook and other online material, Lane said. But he added that those are generally used by the warring parties for civil reasons -- not for criminal prosecution.

"It is an indication of how deeply electronic communication is woven into our lives," Lane said.

Leon Walker was Clara Walker's third husband. Her e-mail showed she was having an affair with her second husband, a man who once had been arrested for beating her in front of her small son. Leon Walker, worried that the child might be exposed to domestic violence again, handed the e-mails over to the child's father, Clara Walker's first husband. He promptly filed an emergency motion to obtain custody.

Leon Walker, a computer technician with Oakland County, was arrested in February 2009, after Clara Walker learned he had provided the e-mails to her first husband.

"I was doing what I had to do," Leon Walker told the Free Press in a recent interview. He has been out on bond since shortly after his arrest. "We're talking about putting a child in danger."

Oakland County Prosecutor Jessica Cooper defended her decision to charge Leon Walker.

"The guy is a hacker," Cooper said in a voice mail response to the Free Press last week. "It was password protected, he had wonderful skills, and was highly trained. Then he downloaded them and used them in a very contentious way."

Walker's defense attorney, Leon Weiss, said Cooper is "dead wrong" on the law.

"I've been a defense attorney for 34 years and I've never seen anything like this," he said. "This is a hacking statute, the kind of statute they use if you try to break into a government system or private business for some nefarious purpose. It's to protect against identity fraud, to keep somebody from taking somebody's intellectual property or trade secrets.

"I have to ask: 'Don't the prosecutors have more important things to do with their time?' "

Clara Walker, through her attorney, Michael McCulloch, declined an interview with the Free Press.

In the preliminary exam, Clara Walker testified that although Leon Walker had purchased the laptop for her, it was hers alone and she kept the password a secret.

Leon Walker told the Free Press he routinely used the computer and that she kept all of her passwords in a small book next to the computer.

"It was a family computer," he said. "I did work on it all the time."

A jury ultimately will decide.

Several area defense attorneys were astonished by the filing of the criminal charges.

"What's the difference between that and parents who get on their kids' Facebook accounts?" attorney Deborah McKelvy said. "You're going to have to start prosecuting a whole bunch of parents."