Leon Walker is accused of reading the Gmail account that belongs to his now ex-wife Clara. In 2009, Leon believed that Clara was having an affair. He allegedly read his wife’s email to find out for sure, then passed on information from those emails to Clara’s first husband (H1). The information Leon learned led him to believe that Clara was endangering his children and those of H1 by taking them to the home of her second husband (H2), who had previously been charged with domestic violence against Clara.
At issue is Michigan Statute 752.795 which states in part:
752.795 Prohibited conduct.
A person shall not intentionally and without authorization or by exceeding valid authorization do any of the following:
(a) Access or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.
I’ve bolded what I feel are the pertinent elements of the offense.
Let’s put aside for another day the issues of a woman with three ex-husbands who was committing adultery (which is illegal in Michigan, and which Clara Walker has not been charged with).
The public consensus is that Walker was justified in reading the emails because of the apparent danger to the children. Others feel that there’s nothing wrong with reading a spouse’s emails, and claim that if Walker is punished for what he’s accused of, then thousands of parents can also be charged for reading their children’s email messages. They point out that it was a shared computer and spouses have equal access to shared property.
Walker could have hired a private investigator to follow Clara. That’s perfectly legal in Michigan. He then would have had the testimony of an impartial third party professional as to what Clara was doing. Leon Walker could have followed Clara himself. There’s nothing wrong with that, and I’d have no problem with him doing so.
In several articles, Walker is said to have first suspected the affair, then discovered the apparent danger to the children, suggesting that their welfare was not the primary consideration.
Is a spousal relationship he same as a parent-child relationship? Of course not. Parents are charged with the care and well-being of their children, and have a legal responsibility to make sure their children are safe. That very justification is being used to excuse what Walker did: He did it for the chiiiiildren. The US Postal Code specifically allows parents to open mail addressed to their minor children for just that reason.
The ownership of the computer probably doesn’t matter here either, even if there was only one user account on the machine. The account is question is a Gmail account, not a local user account. The Gmail account is set up between Google and a specific user. Unless Leon Walker can show that he regularly used that email address with his wife’s permission, he had no authorization to read it.
There’s some question about how Walker came up with the passwords. He’s been quoted at different times as saying he guessed it, or that she had it written down somewhere that he read. But does mere possession of a key convey permission to enter? If I give you the key, then almost certainly yes, you’ve got permission. But if I leave the key under my doormat and you discover it, I don’t see how you can say you’ve got permission.
United States v. Huet seems to indicate that not everything in a house is considered community property. Prior to this case, housemates/spouses/significant others of a felon couldn’t leave a firearm in the home without risking an arrest for furnishing firearms to convicted felons. But Huet suggests that the mere presence of a firearm in the same home where a felon lives does not constitute possession by that felon nor permission for that felon to take actual possession of it. Ergo, mere presence of a computer of a computer does not necessarily constitute permission for anyone in the house to use the computer.
Let’s consider a couple of ideas that might change opinions.
What if Leon Walker had read his wife’s email account from his office? That takes away any consideration about ownership of the computer. Does he now have permission to read her email?
What if Clara Walker was actually an abused spouse, using her email account to arrange a safe haven away from Leon Walker? Is everyone still okay with him reading her email?
And I wonder in this case if Clara Walker is actually the victim. Google owns the computers that were accessed; that would make them the victim, I think. I’m not clear who originated the complaint, either. It appears that Michigan is not a grand jury state, but according to Debra Saunders at the SF Chronicle, two judges have reviewed the case. She thinks that still doesn’t make the prosecution right. Eugene Volokh seems to disagree with her, and I suspect he’s right.
A Michigan state representative has said he’s going to introduce a bill this year that will specifically exclude spouses and parents from charges under this section. I understand his concern over the issue; some legislators are saying that the Walker case is not what they intended this section of Michigan statutes to deal with. But I caution Representative McMillin to carefully consider what his amendments could allow.
The divorce was final in late December, and Mr. Walker is now awaiting trial.