FAMILY LAW CORNER
BEWARE OF FEDERAL LIABILITY FOR EMAIL
AND SOCIAL MEDIA
ADAM RABIN
When a couple is going through a divorce,
it is common for tensions to run high and
emotions to cloud good judgment. Add
into the mix a spouse’s concern that the
other spouse may be having an affair,
hiding assets, or manipulating the couple’s
children, and the first spouse (the “snooping
spouse”) may feel justified in accessing,
without consent, the other spouse’s (the
“hacked spouse”) email or social media
account. Doing so, however, can expose
the snooping spouse to significant federal
liability and change the dynamic of the
divorce proceedings for the worse.
a divorce proceeding will not improve of-evidence letter to the other spouse’s
snooping spouse’s litigation position or attorney that demands affirmative steps
settlement leverage in the divorce case.
be taken to preserve all relevant electronic
communications.
Another problem arises when the snooping
spouse is suddenly forced to defend a new Federal litigation under the Computer
federal litigation, increasing the attorney’s Fraud and Abuse Act or the Stored
fees and costs that the snooping spouse is Communications Act can be complex both
already incurring in the divorce case. The procedurally and substantively. It can
snooping spouse also may need to hire a also be expensive. Therefore, if a spouse
lawyer with federal court experience to going through a divorce needs to retain
defend the federal litigation; it is common an attorney to file or defend a federal
that divorce attorneys will not take on litigation arising under these statutes, the
a federal litigation because they are spouse should consider an attorney with
accustomed to handling divorce cases only experience handling these types of claims
The snooping spouse often does not realize in state court.
in federal court.
that when he or she accesses, without
consent, the hacked spouse’s email or The snooping spouse’s unauthorized access
social media account, the snooping spouse of the hacked spouse’s account also exposes Adam Rabin is a shareholder with McCabe
may be exposed to both civil and criminal the snooping spouse to federal liability Rabin, P.A. and is Florida Bar board certified
liability under the federal Computer Fraud for the snooping spouse’s actual damages in business litigation. He handles federal
and Abuse Act (18 U.S.C. § 1030) and the or losses, statutory damages, punitive and state court litigation, including claims
federal Stored Communications Act (18 damages, and attorney’s fees. 1
Further, arising under the Computer Fraud and
U.S.C. § 2701). Additionally, once the not only will the hacked spouse allege Abuse Act and the Stored Communications
hacked spouse discovers the snooping these damages, losses and fees against Act.
spouse’s unauthorized access of the hacked the snooping spouse within the federal
spouse’s account, the threat of federal litigation, but also as a claimed setoff 1 The snooping spouse also may be exposed to liability
liability often changes the dynamic of against the snooping spouse’s recovery, if under sections 934.21-28, Florida Statutes, which
addresses security of communications and surveillance.
the divorce proceeding by giving hacked any, in the divorce case.
Notably, section 934.27 provides for attorney’s fees
spouse settlement leverage that he or she
shifting, the defendant’s profits, and statutory damages
otherwise lacked. In fact, upon discovering In addition, the snooping spouse’s in addition to actual damages.
that snooping spouse has accessed hacked unauthorized account access often will
spouse’s account without permission, it is give the hacked spouse the opportunity
now increasingly common for the hacked to change the narrative before the divorce
spouse to file a separate lawsuit in federal court, where the snooping spouse now
court against the snooping spouse parallel looks like he or she is the one wearing the
to the divorce case in state court.
“black hat.”
This separate federal litigation may create a
domino effect of problems for the snooping
spouse.
First, the snooping spouse’s
unauthorized access of hacked spouse’s
account may force the snooping spouse to
have to admit or deny – in a deposition in
the divorce or federal case – whether the
snooping spouse accessed the account
without the hacked spouse’s consent.
Because the unauthorized access also
exposes the snooping spouse to criminal
liability, this creates a major dilemma as
to whether the snooping spouse needs
to invoke the 5th Amendment privilege
against self-incrimination and consult a
criminal defense lawyer. Needless to say,
taking the 5th Amendment privilege during
In sum, unauthorized hacking into the
hacked spouse’s email or social media
account exposes the snooping spouse to
federal civil and criminal liability, increases
attorney’s fees and costs, diminishes
settlement leverage, and often causes a
negative narrative shift in the divorce.
Accordingly, these consequences should
belie any notion that the snooping spouse’s
accessing of the hacked spouse’s account
is a “no harm, no foul” proposition. While
it may be difficult for the snooping spouse
to resist the temptation, the better and
safer approach is for the snooping spouse’s
divorce attorney to seek discovery of the
hacked spouse’s relevant emails and social
media posts, and to send a spoliation-
PBCBA BAR BULLETIN
11