So, you are in the middle of a divorce and you think your spouse is cheating on you….should you start snooping about your spouse’s belongings? Perhaps you have the sudden urge to go through your spouse’s email….can you do this? The computer was purchased during the marriage and belongs to the both of you. The internet service is paid from joint accounts. Why wouldn’t you be able to view your spouse’s email?
A recent New Jersey Law Journal article addresses just this issue, Beware the Smoking E-mail, Darren M. Gelber, 11-13-2006. http://www.law.com/jsp/nj/index.jsp
N.J.S.A. 2C:20-25a provides, in pertinent part:
A person is guilty of computer criminal activity if the person purposely or knowingly and without authorization, or in excess of authorization:
a. Accesses any data, data base, computer storage medium, computer program, computer software , computer equipment , computer, computer system or computer network…
e. Obtains, takes, copies or uses any data, data base, computer program, computer software, personal identifying information, or other information stored in a computer, computer network, computer system, computer equipment or computer storage medium…
g. A violation of subsection a. of this section is a crime of the third degree.
There are several questions you should ask yourself before searching through your spouse’s e-mail account. Ask yourself the following:
(1) Do you share a password with your spouse (this would support implied consent);
(2) Does your spouse know that you have accessed his/her account in the past;
(3) Has your spouse consented to your use of his/her email account in the past; and
(4) Does your spouse have a reasonable expectation of privacy.
Sifting through your spouse’s computer in pursuit of information related to financial fraud or deceit might provide you with justification. However, sifting through your spouse’s computer to find information about infidelities is a waste of time and not worth the risk.
Adultery (fault) plays no role in the distribution of assets.