Putting an auto-forward on your husband or wife’s email account when you suspect that they’re cheating may amount to a violation of the federal Wiretapping and Electronic Surveillance Act, the Chicago-based Seventh U.S. Circuit Court of Appeals decided in December 2016.
Paula Epstein, the defendant in the case, was sued by her husband, Barry Jay Epstein. The couple is in the process of divorcing, and Paula accused Barry of “serial infidelity.” Barry’s attorney asked for proof, and Paula’s attorney produced email correspondence between Barry and several other women. According to the opinion, Barry did not know that Paula had access to his emails until they showed up in discovery. He alleges that she must have arranged for his emails to be automatically forwarded to her.
After the matter was appealed to the Seventh Circuit, Judge Diane S. Sykes wrote that “the allegations against Paula… technically fall within the language of the [Wiretapping and Electronic Surveillance Act], though Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding.”
Other federal courts have held that that the Act only applies to emails that are in transit, the majority opinion notes. Based on the email time stamps in the appeal, it could be possible that some of Barry Epstein’s emails were intercepted at the time of transmission, the court wrote, though Paula maintained they were forwarded later.
To read the full and unedited article from the American Bar Association journal, please click here.
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