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Video: Is snooping in your spouse’s e-mail a crime?

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    >>> have you ever been tempted to read your spouse's e-mails? it may seem harmless, but as a michigan man is finding out it may lead to serious charges and the possibility of jail time. natalie has our story.

    >> spying on your spouse or partner can get you in a whole lot of trouble. it's a case of spousal snooping that could land leon walker behind bars. last year walker suspected his wife clara was having an affair after finding calls on her phone bills to a previous husband. concerned about the welfare of their 1-year-old daughter, wilson decided to check his wife's personal g mail account. wilson says her suspicions were confirmed.

    >> she kept every password she had in a phone book . for the welfare of my daughter and my stepson, i had to check. and in going in there, i confirmed everything i had feared and then some.

    >> according to prosecutors, leon walker broke into his wife's account several months after she filed for divorce. clara walker said her husband installed a tracking device that allowed him to track her e-mail activity. leon walker faces up to five years in prison if convicted.

    >> locate history files, websites visited, searches e-mail history. memory bye. see you hide from me now, little man.

    >> spying on spouses is nothing new, but some snooping husbands and wives may not realize that in this new age of technology, peeking in the wrong places can actually be illegal.

    >> there's a slippery slope here, say, well, e-mail is okay, why not diaries, why not doctor records, why not psychiatrist records, why not all sorts of other records that a spouse might not want the other spouse to see.

    >> reporter: if reading your spouse's e-mail is criminal, it could open the floodgates.

    >> there was going to be a concerted effort in the future to prosecute everybody who looks at somebody else's e-mail under their roof, they had better build a bunch more courthouses because we don't have enough courthouses.

    >> reporter: and we reached clara walker's attorney who says his client is not commenting out of respect for the privacy of third parties. but he added please be warned that mr. walker is a self-described actor who lost primary custody of his child for good reasons brought out during four days of testimony in the divorce proceedings. walker is due in court in february.

    >> ricky is a former trial attorney and prosecutor. i read the statute, it seems to apply in this area?

    >> when we're looking at statutes like this, we're talking about people who might be stealing trade secrets , people who are looking to steal intellectual property, people who are guilty of identity theft. however if you read the letter of the law , might there be a prosecutor? clearly this prosecutor thinks it's serious enough to go forth with it.

    >> one of the legal standards you hear is the expectation of privacy. she had given him permission on other occasions to check her e-mail. does that carry over.

    >> i think it carries over and i think it's in his favor. if i share a computer with my spouse, that's what we have here, we have a husband and wife who share a computer. according to him, she had a list of all of her pass words next to her computer.

    >> but if i leave my credit card numbers on a piece of paper, that doesn't mean you can use them.

    >> of course not. but he says his intent is to protect a child from possible domestic violence. so let's say his intent really was to find out about his cheating spouse but in the process finds out he has a child who might really be in danger, what does he do? he could give the e-mails to the police, he could give them to a lawyer, he could give them to a therapist. so if the police, the lawyer and the therapist don't act, who's responsible? i think he's got a great defense here.

    >> this opens up a can of worms here, i think i read about 45% of these cases involve some kind of a spying on records or e-mail. you hear people even looking at cell phones, text messages, would that apply to the statute?

    >> what you're dealing with here, you can ask any trial attorney in any city in america who will say to you husband or wife leaves a blackberry on, the blackberry stays lit for at least two or three minutes before it shuts down and they look and see who is he or she texting now? what does this mean? are we going to put all of these people in jail for felonies? there could be a specific law that says thou shalt not look at your spouse's e-mails, then they could do it. i hate to see what's going to happen to probait and divorce courts around the country, calling up every prosecutor around, you would think there would be more serious crime to deal with.

    >> we'll bring you back to

By
TODAY contributor
updated 12/28/2010 10:39:17 AM ET 2010-12-28T15:39:17

A Michigan man who accessed his wife’s e-mail account while she was allegedly carrying on an affair faces up to five years in prison when he goes on trial Feb. 7 on a charge he violated a state law typically used against hackers intent on making money or mayhem.

The question for the judge or jurors who will hear the case isn’t whether Clara Walker gave Leon Walker, 33, permission to inspect her Google e-mail; he admits she didn’t know what he was up to until her e-mail messages became an issue in their divorce and child custody battle.

But Leon Walker claims that he had every right to poke around in the computer because he was concerned that his wife’s lover — the second of her two former husbands — might be abusive to her around their young children. Walker also contends that he had the right to go on the computer because he bought it, it was in his home, and she left the password lying around.

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‘No choice’
“She kept a copy of every password she had next to her computer in her address book,” Walker told NBC News in a report that aired Tuesday on TODAY. “I felt that with the risk to my daughter and to my stepson, I had an obligation to check. I had no choice.”

However, prosecutors in Michigan say Walker did have a choice, and made a bad one. They have charged him with unauthorized access to a computer in order to “acquire, alter, damage, delete or destroy property.”

Kimberly P. Mitchell  /  AP
Leon Walker, 33, who says he learned of his wife's affair by reading her e-mail on their computer, faces trial on felony computer misuse charges.

Oakland County Assistant Prosecutor Sydney Turner said the charge is justified. But because the statute doesn’t specifically address the issue of a computer that is arguably a jointly owned marital asset, Walker’s lawyer, Leon Weiss, is expected to argue that the statute should not be applied to domestic snooping.

If the prosecution is successful, the repercussions for the criminal justice system could be profound. “If there’s going to be a concerted effort in the future to prosecute everybody who looks at somebody else’s e-mail under their roof, they had better build a bunch more courthouses because we don’t have enough courthouses,” Weiss said.

Vote: Have you ever snooped in your significant other’s e-mail?

Privacy law writer Frederick Lane told the Detroit Free Press that the law typically is used to prosecute identity theft and stealing trade secrets. He says he questions whether a wife can expect privacy on a computer she shares with her husband.

Opening the floodgates?
The problem with prosecuting people for merely reading other people’s e-mails is that it is just so easy to do when the parties are in a relationship, Rikki Klieman, a criminal defense attorney and former Court TV anchor, told Natalie Morales Tuesday on TODAY.

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If prosecutors around the country follow Michigan’s lead and apply hacking laws to husbands, wives, boyfriends and girlfriends, the criminal courts will be deluged with cases that rightly belong before family court judges, Klieman said. “Are we going to put all of these people in prison? Are we going to prosecute people for felonies?

Video: Is snooping in your spouse’s e-mail a crime? (on this page)

“If the legislature wants to enact a specific law that says ‘Thou shalt not look at thy spouse’s intimate e-mails,’ let them go ahead and do it,” she added. “You would think there is more serious crime they have to deal with.”

Clara Walker declined comment when contacted by NBC News.

The Associated Press contributed reporting to this story.

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