Michigan Man Faces 5 Years in Prison for Checking Wife's E-mail

Leon Walker, a computer technician in Michigan, currently faces a jury trial in Michigan. Mr. Walker was arrested in February 2009 for accessing and distributing his ex-wife's emails. However, Mr. Walker claims "It was a family computer" and that he and his ex-wife both routinely used it. Furthermore, Mr. Walker maintains that his reason for peering into his ex-wife's email was in regards to a risk he perceived to his daughter. Despite this, Mr. Walker has been charged with a crime under Michigan Statute 752.795 which prohibits anyone from accessing a computer to "acquire" property or use the service of a computer program "without authorization." This prosecution raises serious issues regarding the use of computer technology to combat Cyberbullying since all 50 U.S. states have similar laws.

Unusual Application of Michigan "anti-hacking" Law

The relevant part of Michigan's Section 752.795 reads:

"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."

At face value the statute would appear to apply to the actions of Mr. Walker if in fact he acted "without authorization." However, should a criminal penalty be imposed in a situation where the alleged offender purchased the computer and used it frequently? How would Mr. Walker's situation differ from that of another parent checking their child's email? Domestic situations likely often make the question of who has "authorization" a difficult one, and further prosecutions such as this could potentially make parents think twice before using technological means of investigating Cyberbullying.

However, it appears that Mr. Walker's situation is not a common occurrence. In a CNN.com article, a N.Y. criminal defense lawyer Paul Callan commented on the situation saying that this was "a highly unusual use of a criminal statute." Mr. Callan further commented that similar statutes are generally used to prosecute "some technological guy who's broken into a company's computer system and damaged it or stolen something." The 2008 Michigan case People v. Brunk illustrates this point in regards to the Michigan statute. In Brunk, a Michigan appellate court reversed the jury trial conviction of a man for a violation of MCL 752.795. The defendant in Brunk was originally charged and convicted under the statute for his actions in accessing the computer network of the Michigan Public Safety Communication System (MPSCS). The defendant, a radio technician, downloaded MPSCS radio programming information and emailed it to a radio vendor. The situation in Brunk, where emergency service radio protocols were involved, is far from that of the domestic context of the situation entangling Mr. Walker.

What is Authorized Access in Domestic Electronic Monitoring

In the context of parents using technology in anti-Cyberbullying efforts, the critical question for parents will be what constitutes sufficient "authorization." People v. Brunk again may prove illustrative and interestingly may support the proposition that proving a "lack of authorization" will be highly difficult in domestic situations. As noted above, the defendant's conviction in Brunk was reversed in part on the grounds that the appellate court found insufficient evidence to support that the defendant lacked authority to access the MPSCS computer network. In reaching this conclusion the court noted that "Generally speaking, defendant, as a state radio technician, had authority to access the computer network." Furthermore, the court discussed the absence of written policies or procedures determining when access to the MPSCS computer network was appropriate and held in favor of the defendant likely because of the uncertainty of the apparent verbal policies. As the court said, "While there may have been a clear and absolute verbal policy, rule, or directive that only radio technicians or radio shops given work orders could access the network and download templates relative to a particular public safety department, and while perhaps defendant did not have authority to do so absent a work order, there was no evidence presented to support these propositions." On this reasoning from Brunk regarding lack of authority, it could be similarly said that a parent or spouse who owns and regularly uses a family computer "generally has the authority to access" that computer. Furthermore, again under Brunk, reliable evidence of fact regarding casual instances of where a spouse or child may give verbal permission or prohibition to access email or a social networking website may prove extremely difficult to establish. It thus may appear that criminal prosecution of electronic monitoring in the domestic setting under statutes similar to Michigan's MCL 752.795 will likely prove time consuming and perhaps problematic.

A New Trend?

The prosecution of Mr. Walker continues, however, prosecutors should consider that criminal prosecution of domestic electronic monitoring may have the unintended consequence of discouraging parents and perhaps educators from using electronic tools to protect children. The question should be asked in regards to Cyberbullying, how can it be adequately addressed when investigation must be done under the specter of criminal prosecutions? It should be noted that the U.S. Department of Health Resources and Services Administration, in listing suggestions to parents on how to prevent Cyberbullying, indicates, for parents to consider installing software monitoring programs. Should these suggestions carry the warning "beware of criminal prosecution" for the use of anti-Cyberbullying tools? I would hope that this should not be the case given the difficulty parents and educators face in dealing with Cyberbullying and bullying of all kinds. In conclusion, parents and educators face tremendous challenges in dealing with bullying and should be able to enter the technological space and use technological tools in their important efforts to stop it without fear of criminal liability.