Bivek, Brubaker & Prescott - Marietta family law and divorce attorneys

Is it OK to Collect Electronic Evidence from Your Spouse?

We often come across situations where one spouse logs on to the other’s computer or e-mail in order to look for evidence of adultery, financial wrongdoing or other improprieties. But before you snoop, you should know you may face civil and criminal liability for the unauthorized access to electronic data.

The Georgia Computer Systems Protection Act

The Georgia Computer Systems Protection Act, or O.C.G.A. §16-9-90 to 16-9-93, covers computer trespass, computer invasion of privacy, computer theft, computer forgery and computer password disclosure. There are two parts, in particular, you should be aware of:

That brings us to the question of what constitutes authority and permissive use in the case of electronic communications.

“Without authority” is defined in O.C.G.A § 16-9-92 as “the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner of the computer or computer network.”

The criminal penalty for committing computer trespass or computer invasion of privacy is up to 15 years in prison or a fine up to $50,000, and there may be civil liability as well.

The Stored Communications Act

In addition to Georgia law, a Federal law – the Stored Communications Act – defines “without authorization” as “using a computer from which one has been prohibited, or using another’s password or code without permission.” Federal courts have held there is a reasonable expectation of privacy when the information in question is password protected.

An Expectation of Privacy

Everyone is entitled to protection against an invasion of privacy, even if it’s an invasion of privacy committed by one spouse against another in a private place. Court decisions such as Ransom v. Ransom, a 1985 Georgia case, have upheld this idea.

The critical issue is whether your spouse has a reasonable expectation of privacy. If the device is a family computer or if your spouse has shared the password to a password-protected device, there is no privacy expectation.

But unless your spouse has told you his or her password or allows you to use his or her computer and phone freely, it is not advisable to access your spouse’s email, computer, or phone without express or implied permission. Not only can unauthorized access make you subject to criminal and civil liability, it can also make any information you obtain inadmissible in court.

Contact Your Marietta Divorce Attorneys

At Bivek Brubaker & Prescott, our Marietta divorce lawyers understand the complications of a divorce case, including issues surrounding electronic evidence. Contact our Georgia divorce attorneys today for a 30-minute consultation.

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