E-Mail

Generally speaking, retrieving a spouse’s e-mail from a home or work computer is not prohibited because the e-mail is stored. Certainly, if a spouse knows the computer’s password, the other spouse has authorized access to his or her computer. An understanding of how e-mail is transmitted is necessary to grasp the basis of the courts’ rulings related to e-mail retrieval.

Sent e-mail is temporarily stored on the service provider’s server until the recipient retrieves it. E-mail is retrieved from the server after the subscriber enters a password, accesses the e-mail, and opens it. Once the e-mail is opened, it is stored on the computer’s hard drive. In the case of AOL, the e-mail is automatically stored on the computer’s hard drive in the AOL Personal File Cabinet or PFC. E-mail will remain on the PFC until manually deleted. There is usually no automatic password protection provided for the PFC. The result is that anyone can open the service provider’s software on a computer’s hard drive and read the PFC e-mails stored there.

Courts have consistently held that retrieving and accessing of e-mail stored on a computer is not a violation of ECPA or the wiretapping statutes because the ‘‘transmission’’ of the e-mail is complete, and reading stored e-mail is not an intercepted transmission. In White v White,8 White exchanged e-mails with his girlfriend that were stored on the family computer. Mrs. White hired an investigative service to obtain her husband’s e-mails from their computer. The court held that retrieving such stored e-mail did not violate the law because it was in its ‘‘post-transmission’’ storage.

Similarly, in Fraser v Nationwide Mutual Ins Co,9 the court held that a wife’s reading of her husband’s e-mail stored on his computer at work did not violate the ECPA or the state and federal wiretapping laws. The court held that an individual’s expectation of privacy with respect to such e-mail communications diminishes significantly after transmission is complete. Further, the Fraser court compared stored e-mail to saved voice mail and held that retrieval of such a communication does not violate the law because the transmission is complete at the point of retrieval and therefore no interception of the communication occurred.

Accordingly, once an e-mail has been read by the subscriber, it is no longer a protected communication that is afforded an expectation of privacy. Just as reading a letter left on a desk is permissible conduct, so is reading an opened e-mail.

I doubt she would file charges against her H because it would bring even more attention to her immoral actions. JMO, of course.

Hi WW,

I am currently counseling three couples where the wife is having, or has had, numerous affairs during their marriage. In each case, they had at least one affair with a married man prior to their marriage. These couples now have children together, and the wife is still having affairs. You did not mention children, so I would assume that you don't have any yet. If you do have children, I would encourage you to do whatever possible to win her back, but if you do not, I would encourage a divorce. The three husbands that I am counseling will all tell you that trying to keep their marriage together has been the most painful experience of their lives.

The fact that you made love so infrequently after marriage is a huge red flag. Something is terribly wrong with your romantic relationship. And it stands next to the red flag of your wife having an affair with a married man prior to your marriage. Her secretive and sexual texting with the man she works with, combined with these other factors tells me that if you continue with this woman, the pattern is likely to continue throughout your marriage. You'll never be able to trust her.

Under the circumstances, I'd go ahead with your plan to confront your wife and her new lover, and then ask her to make a decision. If she wants to remain married to you, she must agree to never be apart from you overnight. You should immediately move to Texas to live with her, and find a job there, even if it means leaving your home in Michigan vacant. If she can't decide, get a divorce. While I'm sure that you are in love with her, you happen to have married a woman who is much more likely to have an affair than most other women, and that will make you worry about her relationship with other men throughout your lives together, even if she enthusiastically welcomes you back now.

Sorry to be so pessimistic, but I know how much effort you would have to put into this marriage to keep it together, and in the end she will probably divorce you anyway.

Best wishes
Willard F. Harley, Jr.