Email and the Marital Privilege

As you may know, in the U.S., people who are married enjoy the marital privilege, an evidentiary privilege that actually has two aspects.

The marital privilege encompasses (i) the marital confidences privilege and (ii) the spousal testimonial privilege.

The first one is analogous to the attorney-client privilege in that it protects the contents of confidential communications made between two spouses.

The second one is the one that pops up in movies; it prevents one party in litigation (plaintiff, defendant, the state in a criminal prosecution) from calling the spouse of the party on trial and requiring that person to testify against her/his spouse. This one is often known as the adverse testimony privilege, and is popularly known as the privilege which means “a wife can’t be forced to testify against her husband” or vice versa.

A recent decision from a federal district court in the Southern District of New York – U.S. v. Etkin, 2008 WL 482281 (2008) – deals with the application of the marital privilege to email. Here are the facts:

Following a Grand Jury Indictment for extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, Philip Etkin, former Deputy Sheriff in the Sullivan County Sheriff's Department and investigator in the New York State Police (“NYSP”) Task Force, was arrested on September 28, 2007 by Federal Bureau of Investigation agents. At the time of his arrest, [Etkin] was in a vehicle assigned to him by the NYSP. Among the items seized from the vehicle was a printed email exchange between Defendant and his wife dated March 13, 2007. The email was found in an open portfolio bag that also contained file folders filled with investigative notes and other work materials. The Government provided this email to {Etkin]’s counsel in discovery on October 12, 2007. On October 31, 2007, Defendant's counsel notified the Government by letter of [Etkin]'s objection to the Government's possession and use of the email on the ground that the email was protected by the marital privilege. The Government's refusal to return the email and expressed intention to use the email at trial has prompted the present Motion.

U.S. v. Etkin, supra. (If you want the facts that led to his being charged with extortion, you can find a summary of them here.)

The motion was Etkin’s motion to prevent the government from using the email at his trial on the extortion charges. In raising marital privilege, Etkin was raising the first one noted above, i.e., the marital confidences privilege. The government was not, after all, threatening to call his wife to testify against him at trial. While whatever she said in the “email exchange” at issue was presumably adverse to Etkin (or why would he be trying to keep it out?), it was testimony she had already given. So the issue the motion raised was whether the contents of the “email exchange” seized by the government qualified as marital confidences. U.S. v. Etkin, supra.

The government’s first argument was that the marital privilege could not apply because the Etkins were separated in March of 2007, when the emails were sent:

According to the Government, the Etkins' separation is evidenced by the following: One of the FBI agents who investigated the charges against [him] spoke with one of [his] former colleagues from the Sheriffs Department, who indicated his belief, based on a conversation with another of Defendant's then-colleagues, that [Etkin] and his wife had been separated since at least September 2006. . . .[Etkin] submitted a memorandum to the NYSP dated March 19, 2007, notifying it of a temporary addres --- not his marital residence -- where his assigned police vehicle would be parked at night. . . and the content of the email at issue indicates a marital separation. . . .

U.S. v. Etkin, supra.

Etkin “vehemently denied” they were separated. The court found that if they had been separated when they sent the emails, the marital privilege would not apply. But it also found that the government submitted “insufficient proof” that Etkins and his wife were “permanently separated” at that time. The email was therefore “subject to a presumption of confidentiality as a communication between spouses”. U.S. v. Etkin, supra.

The court then considered whether the privilege applied. The government argued that the email “did not constitute confidential communication because Defendant sent the email from his work computer, which was owned by the NYSP and which explicitly warned Defendant that his uses of the computer were subject to monitoring by the NYSP.” U.S. v. Etkin, supra. Whenever Etkin logged onto his work computer, a notice appeared which said, in part, that “[a]ny use of the NYSP computer systems constitutes express consent for the authorized personnel to monitor, . . . copy . . . and capture such information for use or disclosure without additional prior notice.” U.S. v. Etkin, supra. The notice also advised users that they had “no legitimate expectation of privacy” when they were using the system. U.S. v. Etkin, supra.

Etkin argued that the email between him and his wife was confidential because he did “not intend to waive any marital communications privilege by using his work computer.” U.S. v. Etkin, supra. He claimed he was never “verbally advised” that his use of the computer was subject to monitoring and argued that the government had not shown that the NYSP actually monitored his email. And, finally, he claimed “never to have read the computer notices,” which, he claimed, made “them ineffective as a means of rebutting the presumption that the email . . . was confidential.” U.S. v. Etkin, supra.

He lost. The court first cited a string of cases which have held that “employees do not have a reasonable expectation of privacy in the contents of their work computers when their employers communicate to them via a flash-screen warning a policy under which the employer may monitor or inspect the computers at any time.” U.S. v. Etkin, supra. It then held that the dispositive issue was whether the notices that

appeared each time Defendant logged onto his work computer sufficiently notified [him] that any email he sent to his wife from that computer might be read by a third party. The Court finds . . . that it did. Defendant's claim that he actually did believe that the March 13, 2007 email to his wife would remain confidential therefore is entirely unreasonable. Accordingly, the Court holds that the email communication at issue is not subject to the marital communications privilege because it was not a confidential communication.

U.S. v. Etkin, supra.

Interestingly, this is really the only case I can find that directly deals with marital privilege and emails. There is a civil case – Sims v. Lakeside School, 2007 WL 2745367 (U.S. District Court – Western District of Washington 2007) – that “web-based e-mails sent and received” by the plaintiff were encompassed by the marital confidences privilege.

I could, though, see the government arguing, in a criminal case, that the privilege does not apply because even web-based email services have the ability to, and apparently do, read emails at least on occasion. It will be interesting to see how this issue develops.