Monday, January 7, 2013

Hey, Nice Guy Getting Divorced: You Could Be A Cyber Criminal

By:  Carole L. Chiamp

I continue to be amazed by the activities of potential clients. About one of three have been engaged in electronic snooping without the vaguest idea that they may be committing a crime.

Here is a list of some cybercrimes, a brief description of the prohibited activity and the statute covering the activity.  Divorcing couples should be very wary of becoming involved in cyber activity.

Unauthorized Computer Access - MCL 752.795(a)Criminalizes the intentional and unauthorized access to a computer program, computer, computer system or computer network to acquire, alter, damage, delete or destroy property or otherwise use the services of a computer program... Punishable by 5 years imprisonment.

Think of a spouse in a divorce breaking into the other spouse’s account because he/she believes an affair is going on.

Use of Device for a Private Place - MCL 750.539d

■    A person shall not
    ‒    “install, place or use...any device”
    ‒    “in any private place”
    ‒    “without the consent of the person or persons entitled to privacy in that place”
    ‒    “for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place”
■    Punishable by up to 2 years imprisonment

Think of a husband and wife in a custody dispute.  They share a home.  Wife installs and hides a webcam while the husband is away to record suspected abuse.

Use of Device for a Private Place (cont’d) - MCL 750.539(1)(b)

■    750.539(1)(b) - A person shall not
    ‒    “distribute, disseminate, or transmit for access by any other person
        ▪    a recording,
        ▪    photograph,
        ▪    or visual image
    ‒    the person knows or has reason to know was obtained in violation” of this law.
■    Punishable by up to 5 years imprisonment

Eavesdropping - MCL 750.539c

■    “Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties” is guilty of this crime.
■    “Eavesdrop” means to “overhear, record, amplify or transmit any part of a private discourse...without the permission of all persons engaged in the discourse...”  MCL 750.539a
■    Punishable by up to 2 years imprisonment

But the Michigan Court of Appeals in Sullivan v Gray, 117 Mich App 476 (1982), held that eavesdropping precluded an eavesdropping action against a participant of the conversation.

Nude Phototaking - MCL 750.539j

■    Criminalizes photographing/distributing a person without clothes or in his/her “undergarments” under circumstances in which the individual would have a reasonable expectation of privacy
■    Punishable by up to 5 years in prison
■    NOTE: Merely surveilling is punishable by up to 2 years in prison

Think of a husband who suspects his wife of infidelity.  He comes home from a trip early and sees an unfamiliar car in the driveway.  He tiptoes to the bedroom window and takes a photo from outside the house of his wife having sex with the other man.

Cyber Harassment and Social Networks - MCL 750.411s

■    Michigan law prohibits a person from posting a message (whether truthful or untruthful), if the person intends to harass another individual by the posting
    ‒    the person must know that the posting could result in 2 or more acts of “unconsented contact” with the other individual;
    ‒    posting must be bad enough that it actually causes individual to feel frightened or harassed and would cause others to feel same way
■    Punishable by up to 2 years in prison

Think of an angry ex-husband who is upset over his divorce.  He uses this cell phone to access a chat room and posts a message indicating his former wife’s phone number and her love of phone sex.  The wife gets lots of phone calls and is very upset, losing sleep, time from work, etc.

Causing Tracking Device to be Placed in Vehicle Without Consent - MCL 750.539l

■    Prohibits “causing a tracking device to be installed or placed, in or on a motor vehicle without the knowledge and consent of the owner of that motor vehicle”
■    “‘Tracking device’ means any electronic device that is designed or intended to be used to track the location of a motor vehicle regardless of whether that information is recorded.”
■    Misdemeanor punishable by up to 1 year in prison

This issue has been much in the news since the United States Supreme Court prohibited police from using tracking devices.

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