Wednesday, December 29, 2010

Man charged with reading his wife's e-mail

A December 26, 2010 article in the Detroit Free Press reports that a Rochester Hills man has been charged with a felony by Oakland County prosecutors after he logged into his wife's laptop computer and e-mail account using her password.

The defendant, Leon Walker, is the woman's third husband. After reading the e-mails, Mr. Walker learned that his wife was having an affair with her second husband, a man who was previously arrested for abusing wife in front of her son. Mr. Walker thought he was being diligent by turning the e-mails over to his wife's first husband (also the child's father), who then filed a motion for custody. Subsequently, Mr. Walker was arrested and charged as prosecutors allege that he illegally hacked into his wife's computer using sophisticated methods. He contends that it was a family computer and that his wife kept all of her passwords in a notebook near the computer.

This seems to be quite a controversial topic as Mr. Walker is being charged under MCL 752.795, a statute which provides the following:

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.

(b) Insert or attach or knowingly create the opportunity for an unknowing and unwanted insertion or attachment of a set of instructions or a computer program into a computer program, computer, computer system, or computer network, that is intended to acquire, alter, damage, delete, disrupt, or destroy property or otherwise use the services of a computer program, computer, computer system, or computer network. This subdivision does not prohibit conduct protected under section 5 of article I of the state constitution of 1963 or under the first amendment of the constitution of the United States.

Generally, this statute has been reserved for more "hacking" type crimes, such as breaking into a business' computer system, stealing trade secrets or for identity theft. According to the Free Press article, many area defense attorneys were "astonished" by the filing of these charges against Mr. Walker as it could lead to a slippery slope of similar charges being filed in all sorts of domestic situations.

Thursday, December 9, 2010

Michigan case law update: Unmarried overnight guests

On November 23, 2010, the Michigan Court of Appeals released the unpublished case of White v White, COA No. 293976, originating in Macomb County Circuit Court.

Following the Judgment of Divorce, the wife appealed a provision in the judgment which prohibited the parties from "entertain[ing] unrelated members of the opposite sex overnight while the children are in their care." This provision was not agreed upon by the parties, but rather, was ordered by the trial court. The court reasoned that "it's morally important for the children to develop in an environment that's conducive to marriage." The court further added that, "if you don't want to teach your children morals, I will."

The Court of Appeals reversed the trial court's decision and determined that "sexual relations outside of marriage, even when adulterous, are not necessarily probative of how a person will interact with or raise a child, and unmarried cohabitation, in itself 'is not enough to constitute immorality under the Child Custody Act.'" Citing Truitt v Truitt, 172 Mich App 38, 46 (1988). Just because one parent may have a person of the opposite sex spend the night while the children are home does not make them a morally unfit parent warranting a change of custody.

In the past, we have found that some judges have been more vocal than others about whether unmarried overnight guests are allowed when the children are home. Because this case is unpublished, it is not precedentially binding (MCR 7.215(C)) as it is case-specific and not necessarily intended to provide a new rule of law. However, unpublished opinions give us an idea of how the Court of Appeals may rule if presented with the same facts/circumstances, and for that reason, may be persuasive to trial courts.

Either way, it remains true that in the event that both parties agree to such a provision in their judgment of dirvoce, it would be enforceable.

The full opinion can be found here.