The Lawletter Vol 35 No 3, February 11, 2011
The recent felony indictment of a Michigan man for accessing his wife's e-mail account on a shared family computer has drawn attention to the broad scope of some state statutes that were enacted for the more limited purpose of prohibiting unauthorized persons from hacking into corporate or governmental computers or computer networks for the purpose of carrying out criminal schemes. See Hayley Tsukayama, Michigan Man Could Go to Jail for Reading His Wife's E-Mail, Washington Post, Dec. 27, 2010, http://voices.washingtonpost.com/fasterforward/2010/12/michigan_man_to_could_go_to_ja.html. Michigan's relevant statute provides in pertinent part that "a person shall not intentionally and without authorization or by exceeding valid authorization . . . [a]ccess 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." Mich. Comp. Laws § 752.795(a). At the time that the statute was enacted, one law review article stated that "[t]he legislature recognized the growing influence of computers and computerized devices that are employed in criminal activities and amended the computer and telecommunications statutes to include new proscriptions and penalties for crimes committed with the aid of such devices." Joseph A. Lavigne & Clara Scholla McCarthy, Annual Survey of Michigan Law June 1, 1996BMay 31, 1997, 44 Wayne L. Rev. 655, 734 (1998). The same article further concluded that the statutes "represent positive attempts to penalize the ever increasing use of computers and computer technology to facilitate the commission of criminal acts." Id. at 736-37.
Leon Walker might question those comments. He's the man who, worried about his wife's contact with the second of her two ex-husbands—who was once arrested for beating her in front of her small son—accessed his wife's e-mail account on their shared computer with a password that she kept in a book next to the computer and discovered that she was having an affair. Worried about the safety of the child, he provided the e-mails to the child's father, her first ex-husband, who filed an emergency petition for a change in custody. When the local prosecutor discovered how the first ex-husband had obtained his information, she sought the felony charge against Walker. His trial is scheduled for February, when he faces the possibility of receiving a sentence of five years in prison.
While the prosecutor has defended the charge as necessary to uphold the privacy protection created by M.C.L. § 752.795, others, including defense attorneys, decry the prosecution as an example of abuse of power by an overzealous prosecutor who has taken the literal language of a statute and applied it to a situation for which it was never intended.