Tuesday, January 18, 2011

Is Leon Walker a Criminal?

If I call from work and the phone is busy
I never, never, never, never, never ask who was on the line (oh no)
If I get home late she don’t ask any questions (no she don’t, you know why)
Cause she’s got her thing going and you know I’ve got mine
-Isaac Hayes “One Big Unhappy Family”

Married people lose some freedom of action and privacy. That’s life. A marriage where one spouse is constantly telling the other one to mind his or her own business is one that probably won’t last. Her business becomes his business and vice versa. On the other hand married or not, people still are individuals and have some expectation of privacy, don’t they?

Leon Walker worried that his wife Clara was cheating on him with her allegedly abusive second husband. He decided to check her email accounts. He found proof of her affair and notified her first ex-husband, who decided to use this information in a custody dispute. Ex #1 was supposedly concerned that his child was being exposed to possible abuse by Ex #2. Leon was also allegedly apprehensive about his own child's safety.

So what right? This is nothing new. Some happy or trusting spouses have joint email accounts which either may use. They sometimes share their passwords with each other. Less trusting or more private spouses often keep an eye on each other and may even occasionally surreptitiously check emails, text messages, voicemails, etc. Morally such actions may be somewhat dubious but it’s not like the police are going to arrest you or the local prosecutor will try to convict you of hacking or spying or anything like that. Well not usually anyway….  


Free Press Article 

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.

I would think similar actions could take place in almost any breakup as people seek information that they can use for greater leverage in divorce or custody hearings. Both men and women have been known to lie. What was sharing a password two years ago when the marriage was happy could become an invasion of privacy when the couple decides to divorce. It appears to me that the prosecutor is using the law incorrectly here. So far judges have refused to throw out the charges.
I don’t understand how a man can be charged with hacking into a computer that was either paid for by him or may be joint marital property. The computer also exists in a location that is either his or jointly owned/rented.  This criminal case could make divorces even more contentious than they already are since the option of jailing someone along with divorcing them would be incredibly tempting for many people who aren’t saints. And I don’t know too many saints.

But the prosecutor has not charged the woman with the crime of adultery.

Is this an appropriate application of the Michigan computer crime law? Does this man deserve five years in prison? Would you change your opinion if the genders were reversed and the woman was facing possible incarceration for snooping? Does a spouse have a right (legal or moral) to know if his or her partner is cheating? Should the woman be charged with adultery?

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