Fourth Circuit Affirms Marital Privilege Does Not Apply to Emails Exchanged Using Employer's Computer

Privacy/Cyber Risk & Data Security

On December 13, the U.S. Court of Appeals for the Fourth Circuit held that the marital privilege does not protect information included in emails exchanged via a spouse’s employer-owned computer and network. United States v. Hamilton, No. 11-4847, 2012 WL 6200731 (4th Cir. Dec. 13, 2012). In an appeal of his criminal conviction on bribery charges, a Virginia lawmaker argued that the email evidence used to convict him was admitted in violation of the marital communications privilege. That common law privilege generally protects privately made communications between spouses. On appeal, the court extended by analogy the U.S. Supreme Court’s holding in Wolfe v. United States, 291 U.S. 7 (1934) to modern technology and held that the lawmakers use of his employer’s computer to send the allegedly privileged communications constituted a voluntary disclosure of the communications, thus waiving the privilege. The court explained that the district court did not err in admitting the communications based on its reasoning that the lawmaker did not take any steps to protect the communications in question, even with knowledge that his employer had in place a policy that permitted the employer to inspect emails stored on its system. As the court explained, the lawmaker was required to acknowledge his employer’s policy each time he logged-on to his work computer, and therefore had no reasonable expectation of privacy. After dispensing with the lawmakers’ other claims on appeal, the appeals court upheld the district court’s conviction.