The opinion of the court was delivered by: Jeffrey S. Sunshine, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The issue presented herein is whether a party in a matrimonial action has the right to access and utilize the email account of the estranged spouse whom she no longer resides with and obtain copies of emails in his email account. The wife purports that these emails implicate her husband, his employer's accountant and former business associates in a scheme to shield income from the wife.
All other issues previously raised in both parties applications have been resolved or reserved for trial.
The parties were married on June 12, 1990. They physically separated on September 1, 2006, and have continued to live separate and apart since that date. The parties have a son of this marriage whom is 19 years of age and resides with the wife. On October 3, 2008, the parties entered into a pendente lite child support order, on consent for the husband to pay the wife $425.00 each month of which $75.00 is for the child's medical coverage.
The wife is a software developer and the husband is currently a medical technician. Prior to his employment as a medical technician he was a computer programmer; in 2001 he was laid off. The husband contends that his unemployment was due to a "bad economy". He claims that this circumstance lead the husband to pursue a different career, which is far less lucrative.
The wife annexes emails to her motion which she concedes she retrieved from the husband's email account. She contends the husband " . . . provided [her] with his email password. He never changed those passwords." Through counsel, the wife contends that the husband never formally revoked his permission to look at his emails. Counsel further avers that the parties each utilized the other's account information for all types of transactions. The wife apparently changed her password when the parties separated, however, the wife avers that the husband never revoked permission to the wife to utilize his email account and password with her in writing or by simply changing his password. The wife annexes these emails in support of her motion as it relates to discovery and an effort to utilize them to demonstrate that the husband's income, as reported, is not accurate.
The husband contends that "[t]hese emails were not obtained', but were stolen by the [wife] without [his] permission." He further avers that his wife did not send or receive emails from his account. Rather, he asserts that the wife is an expert in computer networking. According to the husband, she has the capability and expertise to get into his account and was able to access his account. The husband concedes that he used the same password for all of his computer accounts, a fact which his wife was aware, and he did not change the password until July 2008, almost two (2) years after the parties physically separated. He contends that it is "shocking" for the wife to believe that she had any right to access his account. He reaffirms that he did not give her permission to utilize his email account. Moreover, the husband asserts that the act of starting a divorce action should constitute, in any event, an implied revocation of such authority.
CPLR section 4506 , entitled "Eavesdropping evidence; admissibility; motion to suppress in certaincases" reads as follows: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 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.
The CPLR refers to the Penal Law section 250.05, which states that "[a] person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.". In accordance with the CPLR, if the Penal Law is violated, then the content may not be received in evidence in any trial, hearing or proceeding before any court.
It is incumbent upon this court to consider the definitions of the terms utilized in Penal Law 250.05, specifically, (1) unlawfully; (2) intercept or access; and (3) electronic mail. The term "unlawfully", as it relates to Penal Law section 250.05, can be found in the Criminal Procedure Law sections 700 or 700.05 and Penal Law sections 250.05, 250.10, 250.15, 250.20, 250.25, 250.30 and 250.35. The terms "intercept or access" as it relates to Penal Law section 250.05 is defined in Penal Law section 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 ...