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Beware of Federal Liability for Email and Social Media Hacking During a Divorce

Litigation2

When a couple is going through a divorce, it is common for tensions to run high and emotion to cloud good judgment. Add into the mix a spouse’s concern that the other spouse may be having an affair, hiding assets, or manipulating the couple’s children, and the first spouse (the “snooping spouse”) may feel justified in accessing, without consent, the other spouse’s (the “hacked spouse”) email or social media account. Doing so, however, can expose the snooping spouse to significant federal liability and change the dynamic of the divorce proceedings for the worse.

The snooping spouse often does not realize that when he or she accesses, without consent, the hacked spouse’s email or social media account, the snooping spouse may be exposed to both civil and criminal liability under the federal Computer Fraud and Abuse Act (18 U.S.C. § 1030) and the federal Stored Communications Act (18 U.S.C. § 2701). Additionally, once the hacked spouse discovers the snooping spouse’s unauthorized access of the hacked spouse’s account, the threat of federal liability often changes the dynamic of the divorce proceeding by giving hacked spouse settlement leverage that he or she otherwise lacked. In fact, upon discovering that snooping spouse has accessed hacked spouse’s account without permission, it is now increasingly common for the hacked spouse to file a separate lawsuit in federal court against the snooping spouse parallel to the divorce case in state court.

This separate federal litigation may create a domino effect of problems for the snooping spouse. First, the snooping spouse’s unauthorized access of hacked spouse’s account may force the snooping spouse to have to admit or deny – in a deposition in the divorce or federal case – whether the snooping spouse accessed the account without the hacked spouse’s consent. Because the unauthorized access also exposes the snooping spouse to criminal liability, this creates a major dilemma as to whether the snooping spouse needs to invoke the 5th Amendment privilege against self-incrimination and consult a criminal defense lawyer. Needless to say, taking the 5th Amendment privilege during a divorce proceeding will not improve snooping spouse’s litigation position or settlement leverage in the divorce case.

Another problem arises when the snooping spouse is suddenly forced to defend a new federal litigation, increasing the attorney’s fees and costs that the snooping spouse is already incurring in the divorce case. The snooping spouse also may need to hire a lawyer with federal court experience to defend the federal litigation; it is common that divorce attorneys will not take on a federal litigation because they are accustomed to handling divorce cases only in state court.

The snooping spouse’s unauthorized access of the hacked spouse’s account also exposes the snooping spouse to federal liability for the snooping spouse’s actual damages or losses, statutory damages, punitive damages, and attorney’s fees.[1] Further, not only will the hacked spouse allege these damages, losses and fees against the snooping spouse within the federal litigation, but also as a claimed setoff against the snooping spouse’s recovery, if any, in the divorce case.

In addition, the snooping spouse’s unauthorized account access often will give the hacked spouse the opportunity to change the narrative before the divorce court, where the snooping spouse now looks like he or she is the one wearing the “black hat.”

In sum, unauthorized hacking into the hacked spouse’s email or social media account exposes the snooping spouse to federal civil and criminal liability, increases attorney’s fees and costs, diminishes settlement leverage, and often causes a negative narrative shift in the divorce. Accordingly, these consequences should belie any notion that the snooping spouse’s accessing of the hacked spouse’s account is a “no harm, no foul” proposition. While it may be difficult for the snooping spouse to resist the temptation, the better and safer approach is for the snooping spouse’s divorce attorney to seek discovery of the hacked spouse’s relevant emails and social media posts, and to send a spoliation-of-evidence letter to the other spouse’s attorney that demands affirmative steps be taken to preserve all relevant electronic communications.

Federal litigation under the Computer Fraud and Abuse Act or the Stored Communications Act can be complex both procedurally and substantively. It can also be expensive. Therefore, if a spouse going through a divorce needs to retain an attorney to file or defend a federal litigation arising under these statutes, the spouse should consider an attorney with experience handling these types of claims in federal court.

Adam Rabin is a shareholder with McCabe Rabin, P.A. and is Florida Bar board certified in business litigation. He handles federal and state court litigation, including claims arising under the Computer Fraud and Abuse Act and the Stored Communications Act.

[1] The snooping spouse also may be exposed to liability under sections 934.21-28, Florida Statutes, which addresses security of communications and surveillance. Notably, section 934.27 provides for attorney’s fees shifting, the defendant’s profits, and statutory damages in addition to actual damages.

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