If you are considering separating from your spouse, you may be inclined to collect as much information as possible about your spouse prior to filing a lawsuit. But how and where you obtain this information are just as important as the content itself. So, what can you access? Does it matter if it is a joint or separate account? What if your spouse gives you their log-in information? The answer to these questions could be the difference between time well spent and time in jail.
You cannot access your spouse’s work email account even if you have your spouse’s permission in addition to their log-in credentials. Simply put, your spouse’s employer is the owner of the email account and, therefore, owns all information contained within the account. In most cases, a spouse cannot consent to the disclosure of information that they do not own.
If your spouse has given you their log-in credentials or direct access to their personal account and your spouse authorizes you to access their account, you can permissibly access your spouse’s personal email account. If at any point your spouse changes the log-in credentials for their personal email account or revokes your access to their personal email account, you can no longer permissibly access the account. You also cannot attempt to guess their password in order to gain access to the account. Accessing your spouse’s personal email account without their consent or knowledge for the purpose of intercepting the transmission of emails is a violation of the Federal Wiretap Act. See 18 U.S.C. § 2511(1)(a). There is no exception to the rule for married couples—instead, each spouse has a reasonable expectation of privacy in their electronically transmitted communications. Additionally, a spouse accessing the other’s email account without the other’s knowledge or permission in order to forward their spouse’s email correspondence to their account could also be seen as a violation of the Wiretap Act.
This same behavior could also result in a violation of the Stored Communications Act. Pursuant to 18 U.S.C. § 2701, “whoever intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility; and thereby obtains . . . [an] electronic communication while it is in electronic storage in such system” is subject to prosecution under the Stored Communications Act. See 18 U.S.C. § 2701(a)(1), (2). In some cases, a violation of the Stored Communications Act could result in a fine or imprisonment for a maximum of five years, or both, for the first offense. For any subsequent offense, the violator could be facing a fine or imprisonment for a maximum of ten years, or both, for each subsequent offense. See 18 U.S.C. § 2701(b).
In addition to violating the Federal Wiretap Act and the Stored Communications Act, accessing your spouse’s email account without their knowledge or consent could result in prosecution under the Computer Fraud and Abuse Act, 18 U.S.C. §§ 1030 et seq. Under the Computer Fraud and Abuse Act, intentionally accessing a computer without authorization or exceeding the authorization given for accessing a computer is strictly prohibited and punishable by up to one year in prison and a fine. However, if it is determined that the snooping spouse committed a tortious act while intentionally accessing the other spouse’s computer without authorization, the snooping spouse could be looking at up to five years in prison and a fine. See 18 U.S.C. § 1030(a)(4).
What if your spouse leaves their email account open on a shared computer? Or what if your spouse’s emails show up on a shared device by way of cloud sharing? Can you access your spouse’s email account in this type of situation?
You cannot access an account that is not in your name, regardless of whether it’s in your spouse’s name or that of a third party. Only the person whose name is on the account can access said account. Put differently, the only person who can lawfully access the account is the person authorized to sign on the account (the person with signatory authority on the account). Likewise, if you do not have signatory authority on the account, you cannot withdraw or transfer funds from your spouse’s individual account. No one, not even a person’s spouse, can access a person’s individual bank account unless (1) that person is a co-owner on the account, (2) that person has power of attorney for the account owner, or (3) that person has completed the appropriate forms as required by the specific banking institution to give that person access. However, you can access your spouse’s bank account if your spouse has given you their log-in credentials or direct access to their personal account, your spouse authorizes you to access their account, and your spouse is aware that you are accessing their account.
Should you decide to access your spouse’s personal computer without authorization for the purpose of obtaining information about your spouse’s individual bank account, you could face prosecution under the Computer Fraud and Abuse Act. Specifically, 18 U.S.C. § 1030(a)(2) states that an individual shall be punished under the Computer Fraud and Abuse Act if said individual “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information contained in a financial record of a financial institution.” Punishment for violating 18 U.S.C. § 1030(a)(2) includes a fine, imprisonment for no more than five years, or both. See 18 U.S.C. § 1030(c)(2).
Authorized User. As an authorized user on your spouse’s account, you are able to access account statements; however, you can only access the account activity associated with your card. Unless your spouse shares the log-in credentials as the owner of the account, you cannot permissibly access your spouse’s account activity.
Unauthorized User. If you are not an authorized user on your spouse’s account, you cannot permissibly access your spouse’s account or account activity unless your spouse has given you their log-in credentials or direct access to their personal account, your spouse authorizes you to access their account, and your spouse is aware that you are accessing their account.
As with the unauthorized access of your spouse’s bank account information, accessing your spouse’s credit card account without the spouse’s knowledge and consent is also considered to be a violation of the Computer Fraud and Abuse Act. Pursuant to 18 U.S.C. § 1030(a)(2), “whoever intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information . . . of a card issuer as defined in 15 U.S.C. § 1602(n)” shall be punished under the Computer Fraud and Abuse Act. A single violation of this Act could be punishable by a fine, imprisonment for no more than five years, or both. See 18 U.S.C. § 1030(c)(2). However, such conduct could be punishable by a ten-year prison term, fine, or both if there are multiple violations or an attempt to commit such an offense. See 18 U.S.C. § 1030(c)(2).
You cannot run a credit report on your spouse without your spouse’s permission. The Fair Credit Reporting Act permits credit agencies to provide a person’s credit report to people or entities that have a “valid need” to access a person’s credit score. Those with a “valid need” include creditors, employers, insurers, and landlords. A spouse does not fall within the purview of someone with a “valid need” according to the Fair Credit Reporting Act. Accessing your spouse’s credit report without the spouse’s permission could be considered fraud or identity theft with accompanying criminal charges. See 15 U.S.C. §§ 1681–1681x.
Unless your spouse has given you account access through the proper channels and/or you have power of attorney for your spouse, you cannot access your spouse’s retirement account.
Pay attention to beneficiary designations and changes to payment options and survivor benefits: One spouse cannot make these types of changes without the other spouse’s permission under the Retirement Equity Act, ERISA, 401(k), and IRA.
In the same way that you cannot access your spouse’s work email account, you cannot access your spouse’s work calendar regardless of your spouse’s knowledge or permission to do otherwise.
If your spouse has shared their personal calendar with you or granted you access to their personal calendar, you can permissibly access your spouse’s personal calendar.
If your spouse has given you their log-in credentials, has authorized you to access their social media account, and has actual knowledge that you are accessing their account, then, and only then, can you permissibly access your spouse’s social media accounts. If you are missing just one of the three prerequisites mentioned above, you cannot permissibly access your spouse’s social media account. As with the unauthorized access of your spouse’s email account and bank account information, accessing your spouse’s social media account without their knowledge or consent could end with federal prosecution. Pursuant to 18 U.S.C. §§ 2701–2711, social media accounts are protected by the Stored Communications Act.
If you and your spouse have a shared iCloud account, you can permissibly access your spouse’s electronic information that is stored on your shared iCloud account. However, if your spouse’s information is password protected, and you do not know or have access to this password, you cannot access your spouse’s password-protected electronic information.
