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Email Privacy

Posted in Ethics, Law, Philosophy, Technology by Michael LaBossiere on December 30, 2010
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A recent case raises questions about the ethics of reading a spouse’s email. The gist of the situation is that Leon Walker of Michigan  faces the possibility of up to five years in prison for allegedly “hacking” into his wife’s email account (they are now divorced) and learning that she was having an affair with her second ex-husband.  Michigan does have a law against “hacking” computers, programs or networks to get property “without authorization.” Applying this law to accessing a spouse’s email is seen by some legal experts as a stretch, but Leon Walker might very well face trial under this law.

Walker has offered two main defenses for his actions.

His first defense is that his wife had asked him to read her emails before and had given him the password.

If this is true, then it would certainly seem that she had granted him authorization to access her email. As such, he would seem to have acted neither illegally nor wrongly.

Of course, there is the question of whether or not he was acting under her authorization when he learned of her affair. While it is possible, it seems somewhat unlikely that she would be sending and receiving emails related to the affair while still authorizing her husband to read her email. If she did, in fact, remove her authorization, then a case could be made that he did break the law. Ethically, it could also be seen as an incorrect act. After all, being married does not grant a spouse carte blanche access to the other person’s private matters and this would seem to include email. To use an analogy, if someone allowed her husband to open a bill addressed to her, this would not grant him a right to open all her letters and read through them without her explicit permission.

While it seems reasonable to accept a presumption of privacy even with spouses, there is still the question of whether the right to privacy gives spouses a right to hide misdeeds (such as having an affair). This leads to Walker’s second argument.

After getting the emails, Walker passed on the information with his ex-wife’s first ex-husband. This man used the information to justify filing an emergency motion to get custody of his son (whom he had with Clara Walker, the woman in question). The second ex-husband was apparently once arrested on a charge of domestic violence and since Clara Walker was apparently having an affair with him, Leon Walker saw this as a matter of significant concern.

Walker likened his reading his ex-wife’s email to kicking down a door during a house fire. While this would be breaking in, it would be breaking in with the intent of saving people from harm.

This analogy does have a certain degree of appeal. After all, just breaking down someone’s door to steal their stuff would be a criminal (and most likely immoral) action. This would be analogous to hacking into a computer to, for example, steal credit card numbers. In contrast, kicking down a locked door when a house is on fire so as to save people would not be a criminal act nor a wrongful action. If Walker is right, then his reading his ex-wife’s email should not be considered criminal or unethical.

Of course, when a person kicks down the door of a burning house they know that it is on fire and they have to gain access to actually help people. In the case of the email, Walker would need to have clear signs of a “fire” and would need to have reason to believe that he had to “kick down the door” in order to help people.  This is, of course, a factual matter. It could be the case that Walker had reason to believe that his wife was having an affair and that crucial information relating to the safety of others was locked behind the password (and could not be acquired via other non-intrusive means).

If this is the case, then Walker would seem to have acted in an acceptable manner. After all, a right to privacy does not seem to give a person a shield behind which they can conceal misdeeds or  hide information relating to a possible danger to, for example, a child. In such a case, the person’s right to privacy would be violated and in this they would be wronged. However, the violation could be justified based on the nature of what was being concealed. After all, it would seem odd to say that a married person has  right to conceal evidence of her affair from her husband. He would certainly seem to have a moral right to know that.

In response, it could be argued that the right of a spouse (or ex-spouse) to know about such things does not extend to intruding into certain privacy rights, such as email. After all, while there is a certain appeal to thinking it was okay to get into someone’s email when they were having an affair, one must also consider all the cases in which the spouse is not having an affair. It would be odd to say that spouses should have the right to get into each other’s email, mail, and so on all the time because people have affairs.

Some legal experts and Leon Walker’s attorney are, of course, focusing on the legal aspect of the case. The law in question seems to have been intended to deal with cases in which someone has actually hacked into a computer or network and done damage or has stolen something.

While reading someone else’s email is an intrusion into that person’s privacy, it does not seem to fall under the law, at least as it is worded. After all, nothing seems to have been stolen from the woman and she can hardly claim that she was the damaged party when her affair was exposed.

It will be interesting to see how the case develops and what impact it has on legality of the no doubt common practice of spousal snooping.

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11 Responses

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  1. WTP said, on December 30, 2010 at 12:21 pm

    “It would be odd to say that spouses should have the right to get into each other’s email, mail, and so on all the time because people have affairs.”

    Odd? Not really…personal experience follows…Many years ago in a marriage consoling session, my wife was quite upset with me and demanding to know who “Tiffany” was. See, she had been paging through my day planner (I did say this was many years ago) in my presence, no less, and ran across this name in my contacts list. I was standing by my principle that I had a right to some level of privacy. My day planner was also where I kept gift ideas for her and such. “Tiffany” just happened to be the name of a recruiter for a company that I was considering going to work for. Even upon my explaining who this person was, the wise, trained PhD in Psychology (bit of a philosopher he was) explained to me, in no uncertain terms, that there should be absolutely no secrets between spouses whatsoever. Such a fuss made just because someone whom I never met, 30-some years before had chosen to name their daughter, whom I never met, “Tiffany”. While I most definitely agree that spouses are still entitled to some sense of privacy, it seems odd to me, given the odd world we live in, to consider this odd.

    • Asur said, on December 30, 2010 at 12:45 pm

      Yeah, it’s a rare person who isn’t concerned by possible threats to the things they value.

      My wife once told me that unless she saw me in bed with someone else, she’d trust me completely and never be suspicious of what I did when she wasn’t around. The caveat was that if I ever did betray that trust, I should go before she found out and leave no way for her to find me.

      I’m not sure which I prefer.

    • Michael LaBossiere said, on December 30, 2010 at 12:50 pm

      Hmm, that is the problem with “odd”-as you point out, what should be considered odd, often is not. I’ll have to stop using that term.

      While spouses should not keep certain secrets from each other, people generally seem to have a psychological need for their own space-be it literal space or something more metaphorical. While some might see this as selfish or sinister, I think it is tied in a bit with the need to not always be around one’s spouse/significant other. Which might also be seen as selfish.

      In my own case, I have never shared my email passwords-not because I fear that dark secrets will be exposed, but because 1) there is really no need for anyone else to have it and 2) having it private has some tiny psychological value for me. I do share passwords that friends do have reason to use, such as access to my home wi-fi and even my PC.

      • WTP said, on December 30, 2010 at 1:18 pm

        The problem is not so much with “odd” as it is with ourselves.

  2. Asur said, on December 30, 2010 at 12:29 pm

    Imagine that I give my girlfriend a key to my apartment. Clearly, the only reason for doing this is so that she can enter my apartment without me being at the door to let her in. If I give no conditions for using the key, then my action implies that she may enter my apartment whenever she wishes.

    Let’s say I do give conditions, though — she’s only to use the key in emergencies and when I say that it’s okay beforehand. I would seem to have limited her use of the key. But I haven’t, and the reason is because I didn’t specify what constituted an emergency or my prior assent.

    Through that omission, I essentially left the definition of those things to her judgment — if, to her, forgetting her favorite lipstick at my apartment or wanting to suprise me with a candlelit dinner are ‘emergencies’, then I’ve given her the right to use the key until I say that fetching her lipstick is not an emergency…which I am likely to do only after the fact of her entering on that pretext, and thus my new restriction applies only to future instances of her wanting to enter to get her lipstick.

    That I omitted definitions for “emergency” and the like is pretty much guaranteed; it takes a special sort of person to give you a key ‘for emergencies’ and then exhaustively define what an emergency is. I suggest that you don’t date them.

    Now, say that I move my other girlfriend (let’s call her Girlfriend B) in with me, but I want to keep her existence hidden from Girlfriend A. However, I let the key to my apartment remain in Girlfriend A’s possession. Given the above, if Girlfriend A enters my apartment and discovers Girlfriend B, the fault is essentially mine and I have no recourse.

    If I left the key with Girlfriend A yet still wanted to prevent her entry, the only reasonable response is to change the locks so that the key no longer works. If I leave the key with Girlfriend A and don’t change the locks, I am essentially waiting for her to discover Girlfriend B.

    Saying afterwards that I didn’t want her to use the key I had willfully given her is just silly. No reasonable person would interpret being given the key as anything other than permission to use the key.

    Mrs. Walker knowingly gave her husband the key to her email with the expectation that he would use it, and knowingly did not change her password after she began exchanging email with her stud muffin on the side. Therefore, Mrs. Walker effectively arranged for her husband to find out about said stud muffin via her email, and as he did so with her permission both explicit and implied, he in no way violated her right to privacy in so doing.

    • Michael LaBossiere said, on December 30, 2010 at 12:42 pm

      That is a really good analogy and analysis.

    • WTP said, on December 30, 2010 at 1:17 pm

      Exactly and well stated. Of course most rational and ethical people would understand all of this as just plain common sense. What aggravates is that it seems more and more frequently we are being required to codify common sense. A burden placed on the rational and ethical by the irrational and unethical elements of society. It is absurd that the court system must even be involved here, let alone that Mr. Walker must hire a lawyer to defend himself over this. If he ends up serving time, would that be “odd”?

  3. chamblee54 said, on December 30, 2010 at 1:47 pm

    Odd is a number that is not divisible by two.
    chamblee54

    • Asur said, on December 30, 2010 at 4:44 pm

      Right, and then there’s the normative sense.

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