The Forgotten e-Mail Account

As many matrimonial law practitioners know, New York's laws concerning eavesdropping and the admissibility of evidence obtained while doing so often keep very relevant information out of the courtroom. Civil Practice Law and Rules (CPLR) ' 4506 provides that evidence obtained through the commission of criminal eavesdropping, as defined by Penal Law ' 250.05, is inadmissible in both civil and criminal cases. Penal Law ' 250.00 holds that a person is guilty of eavesdropping when he or she unlawfully engages in wiretapping or the mechanical overhearing of a conversation. The exception is when the person authorizing the use by the court of the recorded discussion was one of the participants in the conversation. Berk v. Berk, 70 AD 2d 943 (2d Dept 1979) (tapes of conversations may be accepted as
evidence if proof of consent of at least one party to the conversations is put into evidence).

It might seem intuitive then that a similar rule would apply to records of e-mail correspondence: If one party to the correspondence agreed to have it submitted to the court, it would be admissible, but the correspondence could not be used as evidence if neither of the people involved consented. However, according to one judge in Kings County, such permission is not needed, because e-mailed discussions, which can be saved for years, are not necessarily in transit when discovered. Thus, according to a strict interpretation of New York law, they also do not necessarily enjoy the same privacy protections that telephonic or otherwise spoken conversations do.

Digging for the Truth

The case of Gurevich v. Gurevich, 24 Misc.3d 808 (Sup. Ct., Kings Cty. 5/5/09) (Sunshine, J.), is a matrimonial action brought by the wife against her husband. The couple had been married since 1990 but had lived separately since Sept. 1, 2006. Their son was 19 years old and living with the wife.

The wife was a software developer and the husband, who was a computer programmer until being laid off in 2001, was a medical technician. They entered into a pendente lite child support agreement in October 2008, in which the husband was to pay the wife $425 per month.

The wife was suspicious that her husband had lied about his income, so she read his e-mails even after she had separated from him and filed for divorce. She wanted to offer the e-mailed correspondence as evidence to support her motion for discovery, in her quest for information that would help her to prove her husband had inaccurately reported his income. The husband objected to the court's use of the e-mails.

The way the wife accessed the e-mails was in dispute, with the wife claiming that her husband had given her his account's password during their marriage and had never revoked his permission for her to use the account. The wife said that they had both used each other's e-mail accounts through the years for a number of transactions, but that she had taken the precaution of changing her own password when the parties separated. The husband countered that he did not give his wife his password or permission to use his e-mail account for any reason, although he conceded that he used the same password for all his computer accounts and that his wife was aware of what that password was. He claimed that the wife had “stolen” his e-mails by using her advanced computer knowledge. He did not change his e-mail account password until the couple had been separated for two years.

The husband also put forth to the court that the commencement of a divorce action should constitute an implied revocation of any authority to access the opposing party's computer-based accounts. (The court found no statutory basis for recognizing an implied revocation of permission to access stored e-mail upon service of a divorce action, so that argument failed.)

The Court's Analysis

CPLR ' 4506(1), entitled “Eavesdropping evidence; admissibility; motion to suppress in certain cases” states: “The contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 [the criminal eavesdropping statute] of the penal law may not be received in evidence in any trial, hearing or proceeding before any court ' provided, however, that such communication, conversation, discussion or evidence, shall be admissible in any civil or criminal trial, hearing or proceeding against a person who has, or is alleged to have, committed such crime of eavesdropping.” Thus, when the penal law is violated, the information illegally obtained may not be received in evidence in any trial, hearing or proceeding before any court.

The wife argued that CPLR ' 4506 should not apply in this case. She relied in part on dicta in the case of Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008), in which the U.S. District Court for the Southern District of New York said that “[t]he plain language of the statute (CPLR ' 4506) seems to limit its application to the contents of the overheard or recorded communication[s]” not electronic communication. However, the U.S. District Court further stated that “ [u]ltimately, a determination of the meaning of CPLR ' 4506 is unnecessary, and better left to the New York state courts”

The Gurevich court began its analysis by considering the meanings of the terms “intercept or access” and “electronic mail,” as used in Penal Law 250.05. The terms “intercept or access” as they relate to ' 250.05 are defined in Penal Law ' 250.00(6) as “the intentional acquiring, receiving, collecting, overhearing, or recording of an electronic communication, without the consent of the sender or intended receiver thereof, by means of any instrument, device or equipment, except when used by a telephone company in the ordinary course of its business or when necessary to protect the rights or property of such company.” The final term “electronic communication” is defined, as related to ' 250.05, as follows:

[A]ny transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, but does not include: (a) any telephonic or telegraphic communication; or (b) any communication made through a tone only paging device; or (c) any communication made through a tracking device consisting of an electronic or mechanical device which permits the tracking of the movement of a person or object; or (d) any communication that is disseminated by the sender through a method of transmission that is configured so that such communication is readily accessible to the general public.

The wife argued that she could only be guilty of illegal eavesdropping under Penal Code ' 250.05 if she had intercepted the e-mails while they were in transit, something that she did not do. Instead, she accessed them after they had been sent and presumably read. She relied for this point on Moore v. Moore (N.Y.L.J., Aug. 14, 2008, at 26, col 1 (Sup Ct, New York County), in which a husband sought to suppress material from the hard drive of a laptop computer that the wife found in the trunk of his car. The Moore court held that ' 250.05 did not apply because “[i]n accessing the disputed files, plaintiff did not intercept, overhear or access electronic communications.”

In a second case cited by the wife, Boudakian v. Boudakian (N.Y.L.J., Dec. 26, 2008, at 21, col. 3 (Sup Ct, Queens County 2008)), the husband had sought to suppress information his wife retrieved from the couple's laptop computer. The Boudakian court consulted the Moore decision and concluded that “[e]avesdropping does not apply since the communication at issue occurred on prior occasions and the wife's subsequent access to that material on the hard drive was not the result of an intercepted communication and does not constitute a violation of Penal Law section 250.05.”

The husband in Gurevich countered his wife's arguments by asserting that she was trying to obscure the real point of Penal Law ' 250.05: to prevent people from intentionally eavesdropping on personal conversations or other communications without the message's sender's or receiver's consent. He pointed out that the law prohibits use of information obtained from those electronic communications not only unlawfully intercepted but also unlawfully accessed. Therefore, he said, it was immaterial that they were not intercepted “in transit.”

The court dispatched the dispute here rather quickly by referring to a memorandum in the legislative history for Penal Law ' 250.00, which stated, “[t]his bill amends the Penal Law and the Criminal Procedure Law to conform with the requirements for the interception [emphasis added] of wire, oral and electronic communication” (L.1988, c. 744 legislation at 000006). Based on this, the Gurevich court concluded that the wife could submit the e-mail communications as evidence. The court stated, “[F]rom the reading of the statute, legislative history and case law that the purpose of Penal Law section 250.00 is to prohibit individuals from intercepting communication going from one person to another, and in this case an email from one person to another. In the case at bar the e-mail was not 'in transit,' but stored in the e-mail account. Even assuming the husband's facts, as stated, to be true, the wife may have unlawfully retrieved information from a computer; in violation of Penal Law 153.10 but there was no interception and accordingly fails to fall within scope of CPLR 4506 as presently written.”

Conclusion

The decision in Gurevich may be literally correct, and evidences Justice Jeffrey Sunshine's reluctance to legislate from the bench. However, its reliance on the exact wording of a memorandum in the legislative history of Penal Law ' 250.00 places a good deal of faith in legislators' ability to say exactly what they mean, without ambiguity or mistake. As anyone who deals with the intricacies of the law knows, such deliberate precision cannot always be assumed. It seems far more likely that the legislature intended to prevent people from surreptitiously gathering information from communications that were considered private by the conversing parties.

Unless and until the legislature decides to clarify the statute to bar the type of information offered into evidence by the wife in Gurevich, matrimonial attorneys should add this to their list of advice for clients about to divorce: “Change your
e-mail password ' now!”

Janice G. Inman is Editor-in-Chief of this newsletter.

As many matrimonial law practitioners know, New York's laws concerning eavesdropping and the admissibility of evidence obtained while doing so often keep very relevant information out of the courtroom. Civil Practice Law and Rules (CPLR) ' 4506 provides that evidence obtained through the commission of criminal eavesdropping, as defined by Penal Law ' 250.05, is inadmissible in both civil and criminal cases. Penal Law ' 250.00 holds that a person is guilty of eavesdropping when he or she unlawfully engages in wiretapping or the mechanical overhearing of a conversation. The exception is when the person authorizing the use by the court of the recorded discussion was one of the participants in the conversation. Berk v. Berk , 70 AD 2d 943 (2d Dept 1979) (tapes of conversations may be accepted as
evidence if proof of consent of at least one party to the conversations is put into evidence).

It might seem intuitive then that a similar rule would apply to records of e-mail correspondence: If one party to the correspondence agreed to have it submitted to the court, it would be admissible, but the correspondence could not be used as evidence if neither of the people involved consented. However, according to one judge in Kings County, such permission is not needed, because e-mailed discussions, which can be saved for years, are not necessarily in transit when discovered. Thus, according to a strict interpretation of New York law, they also do not necessarily enjoy the same privacy protections that telephonic or otherwise spoken conversations do.

Digging for the Truth

The case of Gurevich v. Gurevich , 24 Misc.3d 808 (Sup. Ct., Kings Cty. 5/5/09) (Sunshine, J.), is a matrimonial action brought by the wife against her husband. The couple had been married since 1990 but had lived separately since Sept. 1, 2006. Their son was 19 years old and living with the wife.

The wife was a software developer and the husband, who was a computer programmer until being laid off in 2001, was a medical technician. They entered into a pendente lite child support agreement in October 2008, in which the husband was to pay the wife $425 per month.

The wife was suspicious that her husband had lied about his income, so she read his e-mails even after she had separated from him and filed for divorce. She wanted to offer the e-mailed correspondence as evidence to support her motion for discovery, in her quest for information that would help her to prove her husband had inaccurately reported his income. The husband objected to the court's use of the e-mails.

The way the wife accessed the e-mails was in dispute, with the wife claiming that her husband had given her his account's password during their marriage and had never revoked his permission for her to use the account. The wife said that they had both used each other's e-mail accounts through the years for a number of transactions, but that she had taken the precaution of changing her own password when the parties separated. The husband countered that he did not give his wife his password or permission to use his e-mail account for any reason, although he conceded that he used the same password for all his computer accounts and that his wife was aware of what that password was. He claimed that the wife had “stolen” his e-mails by using her advanced computer knowledge. He did not change his e-mail account password until the couple had been separated for two years.

The husband also put forth to the court that the commencement of a divorce action should constitute an implied revocation of any authority to access the opposing party's computer-based accounts. (The court found no statutory basis for recognizing an implied revocation of permission to access stored e-mail upon service of a divorce action, so that argument failed.)

The Court's Analysis

CPLR ' 4506(1), entitled “Eavesdropping evidence; admissibility; motion to suppress in certain cases” states: “The contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 [the criminal eavesdropping statute] of the penal law may not be received in evidence in any trial, hearing or proceeding before any court ' provided, however, that such communication, conversation, discussion or evidence, shall be admissible in any civil or criminal trial, hearing or proceeding against a person who has, or is alleged to have, committed such crime of eavesdropping.” Thus, when the penal law is violated, the information illegally obtained may not be received in evidence in any trial, hearing or proceeding before any court.

The wife argued that CPLR ' 4506 should not apply in this case. She relied in part on dicta in the case of Pure Power Boot Camp v. Warrior Fitness Boot Camp , 587 F.Supp.2d 548 (S.D.N.Y. 2008), in which the U.S. District Court for the Southern District of New York said that “[t]he plain language of the statute (CPLR ' 4506) seems to limit its application to the contents of the overheard or recorded communication[s]” not electronic communication. However, the U.S. District Court further stated that “ [u]ltimately, a determination of the meaning of CPLR ' 4506 is unnecessary, and better left to the New York state courts”

The Gurevich court began its analysis by considering the meanings of the terms “intercept or access” and “electronic mail,” as used in Penal Law 250.05. The terms “intercept or access” as they relate to ' 250.05 are defined in Penal Law ' 250.00(6) as “the intentional acquiring, receiving, collecting, overhearing, or recording of an electronic communication, without the consent of the sender or intended receiver thereof, by means of any instrument, device or equipment, except when used by a telephone company in the ordinary course of its business or when necessary to protect the rights or property of such company.” The final term “electronic communication” is defined, as related to ' 250.05, as follows:

[A]ny transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, but does not include: (a) any telephonic or telegraphic communication; or (b) any communication made through a tone only paging device; or (c) any communication made through a tracking device consisting of an electronic or mechanical device which permits the tracking of the movement of a person or object; or (d) any communication that is disseminated by the sender through a method of transmission that is configured so that such communication is readily accessible to the general public.

The wife argued that she could only be guilty of illegal eavesdropping under Penal Code ' 250.05 if she had intercepted the e-mails while they were in transit, something that she did not do. Instead, she accessed them after they had been sent and presumably read. She relied for this point on Moore v. Moore (N.Y.L.J., Aug. 14, 2008, at 26, col 1 (Sup Ct, New York County), in which a husband sought to suppress material from the hard drive of a laptop computer that the wife found in the trunk of his car. The Moore court held that ' 250.05 did not apply because “[i]n accessing the disputed files, plaintiff did not intercept, overhear or access electronic communications.”

In a second case cited by the wife, Boudakian v. Boudakian (N.Y.L.J., Dec. 26, 2008, at 21, col. 3 (Sup Ct, Queens County 2008)), the husband had sought to suppress information his wife retrieved from the couple's laptop computer. The Boudakian court consulted the Moore decision and concluded that “[e]avesdropping does not apply since the communication at issue occurred on prior occasions and the wife's subsequent access to that material on the hard drive was not the result of an intercepted communication and does not constitute a violation of Penal Law section 250.05.”

The husband in Gurevich countered his wife's arguments by asserting that she was trying to obscure the real point of Penal Law ' 250.05: to prevent people from intentionally eavesdropping on personal conversations or other communications without the message's sender's or receiver's consent. He pointed out that the law prohibits use of information obtained from those electronic communications not only unlawfully intercepted but also unlawfully accessed. Therefore, he said, it was immaterial that they were not intercepted “in transit.”

The court dispatched the dispute here rather quickly by referring to a memorandum in the legislative history for Penal Law ' 250.00, which stated, “[t]his bill amends the Penal Law and the Criminal Procedure Law to conform with the requirements for the interception [emphasis added] of wire, oral and electronic communication” (L.1988, c. 744 legislation at 000006). Based on this, the Gurevich court concluded that the wife could submit the e-mail communications as evidence. The court stated, “[F]rom the reading of the statute, legislative history and case law that the purpose of Penal Law section 250.00 is to prohibit individuals from intercepting communication going from one person to another, and in this case an email from one person to another. In the case at bar the e-mail was not 'in transit,' but stored in the e-mail account. Even assuming the husband's facts, as stated, to be true, the wife may have unlawfully retrieved information from a computer; in violation of Penal Law 153.10 but there was no interception and accordingly fails to fall within scope of CPLR 4506 as presently written.”

Conclusion

The decision in Gurevich may be literally correct, and evidences Justice Jeffrey Sunshine's reluctance to legislate from the bench. However, its reliance on the exact wording of a memorandum in the legislative history of Penal Law ' 250.00 places a good deal of faith in legislators' ability to say exactly what they mean, without ambiguity or mistake. As anyone who deals with the intricacies of the law knows, such deliberate precision cannot always be assumed. It seems far more likely that the legislature intended to prevent people from surreptitiously gathering information from communications that were considered private by the conversing parties.

Unless and until the legislature decides to clarify the statute to bar the type of information offered into evidence by the wife in Gurevich, matrimonial attorneys should add this to their list of advice for clients about to divorce: “Change your
e-mail password ' now!”

Janice G. Inman is Editor-in-Chief of this newsletter.