Divorce is ugly. It can be uglier when your estranged spouse has the password to your e-mail account.

In Gurevich v. Gurevich, 2009 NY Slip Op 29191 (NY Sup. Ct., 2009), the estranged wife had her ex-husband's e-mail password since their separation in 2006. The wife accessed the husband's e-mail account and claimed to find messages showing a scheme in which her husband, his employer's accountant and his former business partners attempted to shield his income from her.

The court framed the issue as whether the estranged spouse had the right to use the e-mail from the husband's account in trial. The court found she could.

Eavesdropping, or permitted access?

The parties each had access to the other's e-mail while they were married (Gurevich, at 2). After their separation, the wife changed her e-mail password, while the husband did not change his until two years after the couple's separation (Gurevich, at 3). The wife claimed that the husband never revoked his permission for her to access his e-mail after separation.

The New York statute on eavesdropping prohibits the use of any unlawfully obtained communications in a hearing or trial (Gurevich, at 3, citing Civil Practice Law and Rules Section 4506). Eavesdropping is defined under New York law as a person's engaging in "wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication" (Gurevich, at 3, citing Penal Law Section 250.05).

The court analyzed the legal definitions of "unlawfully," "intercept or access" and "electronic communication" in determining whether the wife violated New York law (Gurevich, at 3).

What followed was a highly technical reason why the husband lost.

According to New York law, the interception of an electronic communication is the "intentional acquiring, receiving, collecting, overhearing, or recording of an electronic communication, without the consent of the sender or intended receiver thereof, by means of any instrument, device or equipment" (Gurevich, at 3).

Electronic communication is defined under Penal Law section 250.05 as follows: "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, but does not include: (a) any telephonic or telegraphic communication; or (b) any communication made through a tone only paging device; or (c) any communication made through a tracking device consisting of an electronic or mechanical device which permits the tracking of the movement of a person or object; or (d) any communication that is disseminated by the sender through a method of transmission that is configured so that such communication is readily accessible to the general public" (Gurevich, at 3).

The wife claimed that she did not violate the eavesdropping statute because she did not intercept the e-mail messages in transit, but accessed them in the husband's e-mail account (Gurevich, at 4).

The court agreed with the wife's arguments and New York case law involving electronically stored information on laptops. The court found that the intent of Penal Law Section 250.00 was to prohibit the interception of communications sent between individuals (Gurevich, at 5).

The court explained that the e-mail was not "in transit," but within an e-mail account.(Gurevich, at 5). Even though the wife might have unlawfully gained access to the husband's e-mail account, the e-mail was not "intercepted" and thus did not fall under the eavesdropping statute (Gurevich, at 5).

"In transit" in question

The husband lost in this case on a narrow, highly technical reading of the New York eavesdropping statute. This might also mean that different standards are applied to e-mail messages within Microsoft Outlook on a laptop versus e-mail messages on a Web-hosted platform.

The opinion is silent on whether the e-mail was in a static e-mail inbox, such as in Outlook, or accessed online in a Yahoo Webmail-type account. This is important, because the court relied on cases where e-mail messages in Outlook on a laptop, not a cloud-based e-mail account, were at issue.

Accessing e-mail in the Internet "cloud" by its very nature is different than accessing e-mail stored in Outlook. One could argue that a message accessed through cloud-based e-mail is in transit because it is sent from the service provider's server to the computer accessing the account. Simply put, the e-mail is not residing in a static Outlook mailbox that anyone in possession of the laptop can open, but must be transmitted from Yahoo or Google to an interceptor's computer.

However, if "in transit" means only at the exact moment an e-mail message is sent from the sender to the intended recipient, then the entire concept of online eavesdropping will be very difficult to establish without someone receiving a copy of the e-mail at the time it is sent.

The issue of "interception" or "access" will be fought over again in future cases with the expansion of cloud-based electronically stored information. It is a fair question to ask whether accessing anything stored online would put that electronically stored information "in transit" opposed to being solely stored on a laptop.

More importantly, it highlights the importance of changing e-mail passwords on a regular schedule - or if you have a life-changing event such as a divorce.

Joshua Gilliland, formerly a practicing attorney, is professional development Manager for D4 LLC. He can be reached at jgilliland@d4discovery.com. This is an expanded version of a blog posting that first appeared at bowtielaw.wordpress.com.