Can a person check his spouse’s e-mail without running afoul of anti-hacker laws? Apparently not in Michigan, where Leon Walker faces five years in prison as a result of his snooping during an ugly end to his marriage. Today looks at Walker’s investigation of his wife’s alleged infidelity, assisted in no small part by the lack of security on her e-mail account:

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Walker says he conducted his snooping before the marriage fell apart; his estranged wife says it happened months after she filed for divorce. He says she had given him permission in earlier transactions to access her e-mail; she says that he installed a “hacking device” that allowed him to capture the data. The success or failure of the prosecution will probably rest on which allegations are true, and it may be impossible to unravel which competing claims come closest to the truth.

But should the law apply to spouses at all? Michigan is not a community-property state, but at least in those states that assume half-interests in all property acquired or possessed during the marriage (states vary on the application), e-mail would appear to qualify as property, giving spouses an interest. This is no mere academic question either, as spousal snooping is quite common, and not just in formal marriages:

Earlier this year, Retrevo.com, a consumer electronics shopping and review site, polled 1,000 U.S. residents of varying age, gender, income and location to see whether they have ever spied on their significant others’ e-mail. The results showed that 38 percent of those under 25 who are in a dating relationship have “snooped.” Ten percent of the spies in that age group discovered the other person was unfaithful.

Retrevo’s study found that 36 percent of people in committed relationships have spied on a partner’s e-mail and call logs. Of those, only 3 percent found incriminating evidence.

I agree with Today’s analyst, who suggests that if the state wants anti-hacking and privacy laws to apply to spouses, they should write laws specific to that situation.  In this case, it seems like a prosecutorial innovation and an application of criminal law where divorce court would be a better forum for adjudication.   As Walker’s attorney warns, if we start sticking spouses in prison for snooping on e-mail accounts, we’re going to need a lot more courtrooms and jail cells.

Let’s poll this.  Would you snoop on a spouse’s e-mail, and under what circumstances?