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Email and Computer Hacking in Divorce or Family Law Litigation in Kansas and Missouri

hacking

Clients often want to know if they are able to access their spouse or former partner’s emails, phones or computers or other communication devices. Do we recommend this?

The simple answer is no.

Can I Access my Spouse’s E-mails, Phones, or Computers?

The short answer is generally no, unless you and your spouse or partner share access to an account such as a joint icloud account, a shared calendar, shared email account, or other similar account or even in some situations, a shared computer. Alternatively, if your spouse or partner has given you authorization to access an account by providing you a password or other log in information then arguably, you have been granted permission to review accounts. It is important to note, though, that just the mere fact that you are sharing access to a family computer or other electronic device does not mean that you have been given permission by the other party to access their accounts on the computer (in the absence of explicit authorization to do so). In some situations, a spouse may grant the other spouse access to an account or email log in for the purpose of looking at or gathering information on a specific occasion, but that does not constitute an ongoing or long-term authorization.

Is there Consequences if I Illegally Access or Hack My Spouses (or Former Spouse or Partner’s) Email, or other Electronic Accounts?

Yes. There is a Federal Statute known as the Stored Communications Act, located at 18 U.S.C. Section 2701. This indicates that a person who intentionally accesses an e-mail account not belonging to him or her without authorization (what we commonly know as “hacking an account”, or intentionally exceeds an authorization to access that e-mail account, shall be civilly liable to the violated party. Civil liability means simply that the person whose email account was violated could file a lawsuit against the violating party, and seek significant monetary damages related to the violating behavior.

Federal law further protects against and makes clear that it is equally problematic to guess a password or other passcode or hint questions to gain access to someone else’s account. Again, guessing a password from other knowledge is not a defense to illegally accessing an email account (in the absence of a specific authorization). If a violating party accesses an email account whether through a shared computer, saved password, guessing a password or toher similar behavior, this is illegal. Email or electronic communication cannot be accessed, read, copied or distributed without authorization from the passcode or password holder. See 18 U.S.C. Section 1030(a)(2)(C).

If I Obtain Information from My Partner’s Email, Phone or Computer, Can I Use it In Court?

Again, the simple answer is generally not. The court is not going to allow you to enter into evidence information that was illegally obtained in violation of relevant federal laws.

How Can You Legally Obtain Information from your Spouse or Former Partner’s Email, Phone or Computer?

Simply put, in family law cases, there are a variety of legal discovery opportunities where we can obtain information, including, if needed, information stored electronically. In a request for production of documents, for example, you could make requests for emails, text messages, and social media activity. Another discovery method would be take your spouse or former partner’s deposition. This would allow specific questions to be asked of him or her regarding their electronic behaviors and use. In a deposition, questions have to be answered under oath. In other situations, if you are trying to prove information, for example that your spouse has engaged in an affair, you can subpoena the spouse’s paramour or affair partner to have the behavior admitted in that fashion. In rare situations, a motion to obtain digital imaging of an electronic device could be filed and requested to the court.

If you have issues surrounding electronic data use, it is important that you obtain a consultation with an experienced and knowledgeable family law attorney to guide you through your options, the risks and benefits of those options and to make informed decisions regarding how you should proceed. Call Pingel Family Law today to schedule your consultation at (816) 208-8130 so that you can discuss obtaining electronic evidence through lawful discovery channels.

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