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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 may feel justified in accessing the other spouse’s email or social media account without consent.  Doing so, however, can expose the first spouse to significant federal liability and change the dynamic of the divorce proceedings for the worse.

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

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

Another problem arises when Spouse A is suddenly forced to defend a new federal litigation, increasing the attorney’s fees and costs Spouse A is already paying for the divorce case.  Spouse A also may need to hire a lawyer with federal court experience to defend the federal litigation. It is common that divorce attorneys will not handle a federal case because divorce cases are litigated exclusively in state court.

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

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

In sum, Spouse A’s exposure to federal civil and criminal liability, increased attorney’s fees and costs, diminished settlement leverage, and risk for a negative narrative shift in the divorce, should belie any notion that Spouse A’s accessing of Spouse B’s account is a “no harm, no foul” proposition. While it may be difficult for Spouse A to resist the temptation, the better and safer approach is for Spouse A’s divorce attorney to seek discovery of Spouse B’s relevant emails and social media posts, and send a spoliation-of-evidence letter to Spouse B’s attorney that warns Spouse B to take affirmative steps 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.  Therefore, if a spouse going through a divorce needs to retain an attorney to file or defend a federal case involving these types of claims, the spouse should consider an attorney seasoned in federal court and with experience handling these claims.

McCabe Rabin, P.A. handles federal court litigation, including claims arising under the Computer Fraud and Abuse Act and the Stored Communications Act.  The firm does not handle divorce cases.

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