(First, IANAL but am on break before my final semester of law school)
When we're asking if something is a crime I believe that we're actually asking two things: (1) is it a crime, and (2) should it be a crime? Here, the answer to (1) is pretty straightforward because it's been addressed by the state legislature. The trickier issue is if it *should* be a crime, for example, if the statute is held to be unconstitutional then it would be invalidated; trickier still are public policy issues. In any case I'll focus on the straightforward aspect.
Here's, the Michigan statute in question:
Section 752.795 FRAUDULENT ACCESS TO COMPUTERS, COMPUTER SYSTEMS, AND COMPUTER NETWORKS (EXCERPT)
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. [note: the section of the Michigan constitution alluded to here relates to freedom of speech & the press]
History: 1979, Act 53, Eff. Mar. 27, 1980 ;-- Am. 1996, Act 326, Eff. Apr. 1, 1997
As his actions were presumably intentional it appears that the issue is: Were his actions without authorization or did they exceed his valid authorization? According to the following article this is a fact-based issue that will be up to the jury to decide. Essentially "she" claims that the computer was hers alone and the password was a secret and "he" claims that he regularly used the computer and had easy access to the passwords. Ease of access to the password will likely be the determinative factor as to if he had "authorization" to access those emails.
Although his rationale for accessing those emails do not appear to be relevant per the statute, I imagine that it would be an issue when it comes time for sentencing. If instead of finding out that she was (presumably) engaged in adultery with an ex-spouse who (presumably) beat her, how would the prosecutor's office have reacted if he had accessed emails showing that:
- she was a drug dealer?
- she was a child pornographer?
- she was a terrorist?
Is reading wife's e-mail a crime? Rochester Hills man faces trial
In the preliminary exam, Clara Walker testified that although Leon Walker had purchased the laptop for her, it was hers alone and she kept the password a secret.
Leon Walker told the Free Press he routinely used the computer and that she kept all of her passwords in a small book next to the computer.
"It was a family computer," he said. "I did work on it all the time."
My initial question was why the prosecutor's office pursued this case in the first place; the following article discusses Cooper's decision to stop supporting treatment courts due to its need to "deal with the surge in violent crime and the surge in technically complex cases." The pursuit of the case at hand doesn't fit with the purported need to focus on a "surge in violent crime...".
Cooper's office threatens to pull out of drug courts
"Now, more than ever, we must utilize our limited resources to handle a huge volume of cases effectively, and we do not have the luxury of micromanaging a small, select group of cases," Cooper wrote. "Instead, the Oakland County Prosecutor's Office must marshal its severely diminished financial and personnel resources to deal with the surge in violent crime and the surge in technically complex cases."
Cooper wrote that her office won't participate in the Circuit Court's juvenile and adult treatment courts, a new mental health component, or treatment courts run by the district courts. She said she will withdraw at an agreed upon date no later than Sept. 30."
Earlier this year Cooper's office charged a widow of her husband's murder before the autopsy indicated a cause of death.
Lloyd Johnson Autopsy Reveals Attorney Not Murdered, Laura Johnson Vindicated? Cooper's reaction to the announcement that no murder occurred is a bit strange: Ms. Cooper sends her regrets, sort of
I've known Jessica Cooper for at least a dozen years, and in my experience she has been an honest, hardworking and essentially decent public servant.
So I was surprised, I told the Oakland County prosecutor when she returned my call Tuesday, that Cooper had not been there to apologize in person when her deputy Paul Walton appeared in court to dismiss criminal charges against Laura Johnson, whom Cooper had publicly accused of murder a few days earlier.
"I'm busy," Cooper answered cheerfully, adding that she had complete confidence in Walton's ability to explain her office's about-face.
When I said Walton's statement to the court had struck me as long on explanation and short on contrition, the prosecutor's voice turned sterner.
"I released her, didn't I?" Cooper said. "Twenty minutes after the medical examiner ruled the death an accident, we were making arrangements with the court to get her out of jail.