Posted by: euser
January 10, 2011
Topic: Evidentiary Issues

Frequently, clients bring Louis and I print outs of photographs or text from Facebook or other websites. Often these print outs show the client's spouse, former spouse, or ex-boyfriend/girlfriend out on the town carousing, getting intimate with someone new, or playing with the parties' child in a potentially unsafe way (such as allowing the child to go outside with clothing inappropriate for the weather). The clients usually want to use the print outs as "evidence" against the other party.

A recent news story from Michigan demonstrates the trouble that an individual can get into if he or she obtains information from another spouse's computer, email, or otherwise without the person's permission. The article, titled "Man facing trial on hacking charge defends reading wife's e-mails" may be read here:

http://www.cnn.com/2010/CRIME/12/29/michigan.hacking.spouse/index.html?hpt=Sbin

In the story, a Michigan man, Leon Walker, defended his choice to read and share e-mails from his wife's account showing that the wife, Clara Walker, was having an affair with her second husband. Leon was Clara's third husband. Leon shared the emails with the wife's first husband, who used them to file an emergency motion to obtain custody of the child he and Clara had together. Leon faces a jury trial next month for allegedly hacking into Clara's e-mail account.

Leon claims that Clara had asked him to read her emails before, that Clara had given him the password, and that Clara didn't keep the password a secret. Leon said that he and Clara's first husband were concerned because the second husband had a past arrest for domestic violence. Clara complained to the police about how the emails made their way into Court, and the county prosecutor used a state anti-hacking law to charge Leon with a felony. Michigan law forbids someone from accessing "a computer program, computer, computer system or computer network" to acquire property "without authorization."

According to a lawyer CNN interviewed named Paul Callan, this was an unusual use of the Michigan criminal statute because this type of law is typically used to prosecute someone who breaks into a company's computer system and damages it or steals something.

In Kentucky, KRS 434.840, 434.845, 434.850, 434.851, 434.853, 434.855, and 434.860 are laws related to unauthorized computer access. KRS 834.840 sets forth the definitions for the terms in the laws. Pursuant to KRS 434.845, a person is guilty of unauthorized access to a computer in the first degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof to defraud or obtain money, property, or services for themselves or another by means of false or fraudulent pretenses, representations, or promises. This is a Class C felony.

KRS 434.850 sets forth that a person is guilty of unlawful access to a computer in the second degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof, which results in the loss or damage of three hundred dollars ($300) or more. This is a Class D felony.

KRS 434.851 sets forth that a person is guilty of unlawful access in the third degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof, which results in the loss or damage of less than three hundred dollars ($300). This is a Class A misdemeanor.

KRS 434.853 sets forth that a person is guilty of unlawful access in the fourth degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof, which does not result in loss or damage. This is a Class B misdemeanor.

KRS 434.855 sets forth that a person is guilty of misuse of computer information when he or she receives, conceals, or uses, or aids another in doing so, any proceeds of a violation of KRS 434.845; or receives, conceals, or uses or aids another in doing so, any books, records, documents, property, financial instruments, computer software, computer program, or other material, property, or objects, knowing the same to have been used in or obtained from a violation of KRS 434.845. This is a Class C felony.

These laws show that it can be problematic if a client attempts to, or successfully obtains information from a spouse or opposing party's computer without the computer owner's consent. So while it isn't illegal for a party to print off public photos from websites like Myspace or Facebook that are accessible to that person, it could be a felony or misdemeanor for the party to go through another person's computer, obtain the person's password through a keystroke logging program or by repeatedly trying to guess the password, or use technology to "hack" into the person's private computer data.

Louis and I realize that clients are the best "experts" about what has happened in their cases because the clients were present to witness the events unfolding in their personal lives. Often, clients have a multitude of evidence readily accessible to them, such as tax records and bank statements, that we can use to build a solid case. However, we always advise our clients to leave "sleuthing" up to a professional. We can properly propound discovery requests to an opposing party. If necessary, we can hire expert help to can locate information without breaking the law. We make sure our clients understand that self-help methods like following the other party, watching the other party's residence, and interrogating the opposing party's friends or family could, at minimum, lead to expensive motion practice if the opposing party files a motion to stop the behavior; and in worse case scenarios, land the client in jail.

If you have a domestic relations case, contact us. Click the link to "Contact Us" above, or fill out the form on our homepage. We'll explainwhat type of evidence your case will require, and the proper way to collect what you need. With something as important as a domestic relations case, you don't want to leave the legal work or sleuthing to yourself. Contact a professional like Louis or me. -Stacy Anne Hoehle

Leave the Sleuthing to a Professional

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