A December 26, 2010, news story from the Detroit Free Press reports that a Michigan man was charged with a felony for reading his wife’s e–mails from her free Google Gmail account. He was charged under Michigan Compiled Laws § 752.795, which reads:
A person shall not intentionally and without authorization or by exceeding valid authorization do any of the following:
(a) Access or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.
(b) Insert or attach or knowingly create the opportunity for an unknowing and unwanted insertion or attachment of a set of instructions or a computer program into a computer program, computer, computer system, or computer network, that is intended to acquire, alter, damage, delete, disrupt, or destroy property or otherwise use the services of a computer program, computer, computer system, or computer network. This subdivision does not prohibit conduct protected under section 5 of article I of the state constitution of 1963 or under the first amendment of the constitution of the United States.
The article points out that this criminal statute is aimed at identity theft or stealing a company’s trade secrets. But in this case, the man is charged with violating this criminal law by using his wife’s laptop computer and his wife’s password to read her e–mails, which revealed she was having an affair. The couple has since divorced. The man claimed that the computer was a family computer that he used regularly. Also, the person she was having an affair with had a history of domestic violence, and the man was concerned about the safety of his wife’s child from her first marriage. Under Michigan Compiled Laws § 752.797(2), a person found guilty of these charges could be punished by up to five years imprisonment, a fine of up to $10,000, or both. The man’s trial is scheduled for February 7, 2011.
This case should be an eye–opener for guardians, conservators, personal representatives, trustees, and family members of a person who is incapacitated or deceased. As I have mentioned before in this blog, it is important for the fiduciary or family member to have the necessary authority under state or federal law before accessing an incapacitated or deceased person’s e–mail accounts, other Internet accounts, or even their computer or smartphone. Fear of criminal prosecution could put fiduciaries and family members in a difficult position when trying to gather the person’s financial information and valuable digital property for an inventory or estate tax return. Some of these data privacy laws (for example, HIPAA), clearly authorize the personal representative to access a deceased person’s protected information. But state and federal governments should consider revising data privacy laws to clearly authorize guardians, conservators, personal representatives, and trustees of a person’s revocable trust to access an incapacitated or deceased person’s protected information so that the fiduciary can effectively access the information needed to administer the estate or trust without fear of prosecution.
