Unauthorized access to email results in verdict of $325K.

In the past, I have blogged about unauthorized access to social media and email accounts in the context of divorce. http://massfamilylawblog.blogspot.com/2012/12/can-you-spy-on-your-spouse-with.html and http://massfamilylawblog.blogspot.com/2012/10/spying-on-spouse.html. The danger of such spying is shown by a recent case of unauthorized access which resulted in a verdict of damages of $325,000.00.

In the case of Cheng v. Romo, (Civil Action No. 11–10007–DJC. U.S. Dist.Ct. MA) a civil lawsuit was filed under the federal Stored Communications Act 18 U.S.C. § 2701, et

seq. and the Massachusetts Privacy Act Mass. Gen. L. c. 214, § 1B. Cheng and Romo were doctors who worked together. Their employer did not provide email addresses so they used their private emails for work purposes. Cheng gave Romo his email password so she could access some documents that Cheng had received relating to their work. Romo used the password on several occasions at the time that Cheng gave her the password. For over four years, Romo did not access Cheng's email. However, when Romo was having problems with the empolyer and was contemplating leaving the company, she again accessed Romo's email account. When she accessed the email at this time, she did it for the purpose of obtaining information to help her in potential litigation and negotiations with the employer. Romo's access of the email was discovered when her lawyer produced emails from Cheng's account. A lawsuit followed for damages for the unauthorized access of the email account.

The facts of this case raised questions about interpretation of the Stored Communications Act. Once authorization is given for an email account, can it be limited? Does it have to be limited by express words? Can it be limited by the context of the grant of permission?

Based on jury verdict, it appears that a use exceeding authorization constitutes an unathorized use under the statute. Furthermore, the context can establish the scope of permission. In this case, permission was granted to access an email account for performing work and obtaining information necessary for performing a job function. When the account was accessed four years later, the purpose was to obtain information to harm the owner of the email account and the employer. This was not a proper purpose.

Unless there is a written document establishing the scope of authorization for another's email account, the scope of any authorization should be limited to access for the benefit of the account holder. Any intentional access to obtain information to the detriment of the account holder should be considered unauthorized. I consider intent as the critical element. If a person, in good faith, uses another's email account and happens across harmful information, that access would still be authorized. It is only when the intent is to cause harm that such access should be considered in violation of the computer access and privacy laws.

Applying the lessons of this case to my previous blog articles, I conclude that spying on a spouse or other by accessing their email violates these laws even if the password was freely given. This is true even if a shared computer is used or a computer that is owned by the person spying. Using the internet to spy on another or harm another can be very risky as this $325,000.00 verdict shows.

Before trying to harm someone by using their email or other accounts, you should consult a lawyer who can advise you on the law as it applies to your specific facts.

Restraining orders and Facebook*

Does a court ordered domestic abuse restraining order effect the way a person uses Facebook or other social media? In Massachusetts a typical domestic abuse restraining order includes a no contact and no abuse order protecting an individual or an individual and their children. As an example, a Court may order John to stay 100 yards away from his wife Jane and his children Mary and Sam. In addition, John is prohibited from contacting or abusing Jane, Mary, or Sam. Violation of any of these orders is a criminal act subjecting John to possible arrest and criminal prosecution. If convicted, John could be incarcerated. John is a user of Facebook and has been a user for years. His wife Jane and possibly his children are “friends” on Facebook. He and Mary have common “friends” on their Facebook accounts.

The first thing that John should do is to “unfriend” Jane and the children. As friends, his wife and children will receive postings from John's Facebook page on their own Facebook pages. Any postings by John that appear on Jane's Facebook page could easily be considered to be a violation of the no contact order. Since John is aware that Jane is a “friend” he should be aware that his postings will appear on the “walls” of his Facebook friends. This should be sufficient to constitute an intentional act that violates the no contact provision of the restraining order. However, is unfriending his wife and children sufficient? Probably not.

John should avoid mentioning Jane, Mary, and Sam in his Facebook postings. Even if John writes that “I love my children and will never stop loving them” he could be arrested. While I believe that such a posting doesn't violate the restraining order if the wife and children are no longer friends, my opinion is not enough to stop him from being arrested. Since John and Jane have common friends, one of these friends may tell Jane about the posting. If Jane calls the police, the initial decision about arresting and prosecuting John will be made by the police or Assistant District Attorney. The problem is that not every police officer, Assistant District Attorney, or even Judges understand Facebook and how it works. As a result, a criminal case can be filed against John. It is small comfort for John that at trial or on appeal, the case is dismissed. He may spend time in jail and may have to spend thousands of dollars to hire a lawyer and possibly an expert witness to fight the criminal case. The better choice is to avoid conduct that may result in the criminal charges.

I recommend the following actions if a order issues:

1. Immediately “Unfriend” the person identified in the restraining order as being protected.
2. Do not write or post anything online that uses the name of the protected person or an other term that identifies them. Identifying Jane as “my wife” or writing about “my children” is the same as identifying them by name.
3. Do not post any pictures or video of the protected person.
4. Do not discuss the restraining order in a public forum like Facebook.
5. Adjust your security settings on Facebook so that protected person can't see your content. 

If you are the subject of a restraining order you should consult an experienced lawyer to help you understand the order. There may be parts of the order that are not clear or confusing. You want to avoid any conduct that can result in an arrest for violation of the restraining order.

* Facebook is used in this discussion but the discussion applies to all social media.

Divorce and Children's Religion in Massachusetts

When parents with different religions divorce the choice of religious upbringing of the children can be a major issue. A recent case from the Massachusetts Appeals Court makes agreement on this issue much more difficult.

In the case of Lapat v. Lapat (decided on April 20, 2013), a Jewish husband and a Christian wife settled their divorce by a comprehensive separation agreement. They specifically addressed the religion of the children. They agreed that the children would be raised primarily in the Jewish tradition and prohibited the mother from enrolling the children in any form of Christian education, organizations, or religious instruction. The mother then claimed that this provision violated her constitutional right of Freedom of Religion. The father sought to prohibit the mother from exposing the children to her Christian religious practices and beliefs. Instead of focusing on the language in the agreement that says that the children would be raised primarily in one religion, the Court ruled that the entire clause was unenforceable absent a showing that exposing the children to the mother's religion would cause the children to suffer substantial injury.

The use of the word primarily means that the children should be exposed to both religions. The father having agreed to expose the children to both religions should not be able to limit the exposure after the divorce was final. Instead the Court imposed a standard that seems to prevent the parents from agreeing at the time of a divorce on religious choice for their children. In the decision, the Court rewrote the religious provision of the divorce agreement to require the parents to agree on religious education, events, and practices for each and every choice. This seems to be the worst possible option for the family. Instead of having preset rules that the parties established by agreement, the parties will the opportunity to argue and litigate over every religious choice. While the Court should not give preference to one religion over the other, the Court can enforce a provision where the parents agreed on religious preference. Reducing issues for parents to litigate can only benefit the children in the long run.

It is possible that Courts in the future may treat this case as limited to the unique facts of this case. Until such time as the Courts give further guidance on this issue, I suggest the following:

1. When agreeing on religion, parents should agree to specific provisions. They should specify the religion for the children.  Significant life events as viewed by the religion of choice should be addressed. Children's participation with parents in religious holidays should be detailed. This should include details for both parents' religions and not just the children's religion. The agreement should describe how the parent with the different religion from the children can practice their reiligion in their home when the children are present.
2. The agreement should recite how significant religion is to the welfare and well being of the children. It should also state if the parents agree that training and education in another religion is harmful to the children. If the parents, before divorce, raised the children in only one religion or primarily in one religion then the agreement should recite the history of the children's religion.
3. Finally, the agreement should acknowledge that the parties have the right to change their religious beliefs and to change the religious provisions of the separation agreement. However, neither parent has the right to fail to comply with the terms of the agreement without the agreement of the other parent or a modification of the agreement. The separation agreement should also set forth a procedure to modify the religious provisions of the agreement. This modification may be by court order, mediation, arbitration or a parent coordinator. Absent such a modification each parent shall comply with the terms of the agreement. This should recognize freedom of religion but also recognize the need for stability in parenting and the need for joint action rather than the right of one to implement unilateral change.

Parties should draft choice of religion provisions in separation agreements with care. An experienced Massachusetts divorce lawyer should be able to draft provisions with specificity and clarity that may survive appeals.

Changes in Massachusetts Marijuana Laws.

Most residents of Massachusetts know that marijuana laws have changed but don't seem to understand the changes. Many people think that it is now legal to possess small amounts of marijuana. This is not correct. Massachusetts has decriminalized possession of small amounts of marijuana. However, just because possession of less than an ounce of marijuana is no longer a crime that doesn't mean that it is legal. It is still illegal to possess small amounts of marijuana. Instead of being punished by a jail sentence, possession is only punished by a fine of $100.00. This means that in Massachusetts, possession of any amount of marijuana is still illegal. An act that is punished by a fine and not by the possibility of jail is an offence and not a crime. It is comparable to a speeding ticket. It is illegal to drive faster than the speed limit and can be punished by a fine just as possession of small amounts of marijuana is punished by a fine.

Massachusetts voters voted to allow the medical use of marijuana. Under this initiative, it will be legal for people with a doctor's prescription to purchase and possess marijuana for medical use. At this time, Massachusetts has not passed regulations to allow the sale of marijuana and no facilities have been authorized to sell it. I expect that in the next year or so, that the sale of medical marijuana will start in the state. As of today, there is no lawful sales of marijuana.

These two changes in statutes have caused other changes in criminal law. The highest court in Massachusetts, the Supreme Judicial Court has issued three recent opinions interpreting marijuana laws. Two of these cases changed the way that the state will interact with people who use marijuana in Massachusetts.

Before the change in the law, the smell of marijuana or burnt marijuana was probable cause for law enforcement to search the premises. Commonly, police smelled marijuana when making motor vehicle stops. The subsequent search of a car frequently lead to an arrest for other crimes. However, possession of marijuana is not necessarily a crime. The smell of marijuana is probable cause for a police officer to believe that the offense of possession of marijuana was committed. However, an offense is not a crime and the police can't search when they believe that an offense has been committed. In the case of Commonwealth v Daniel, the Massachusetts Supreme Judicial Court found that the smell of marijuana or burnt marijuana does not constitute probable cause to believe that a crime has been committed.

In Commonwealth v. Jackson, the court defined the crime of distribution of marijuana in light of the recent change decriminalizing small amounts of marijuana. In this case, police observed people sharing a marijuana cigarette. The passing of a joint had previously constituted the crime of distribution of a drug. The court ruled that the social sharing of small amounts of the drug was within the scope of the new law and intended to be an offense and not a crime. This ruling is a sensible interpretation of the law. If possession of less than one ounce of pot is no longer a crime, why should the sharing of a joint, without the exchange of money be a crime? The Court found that social sharing of joints is no longer a criminal act.

The third case looked at cultivation of marijuana in light of the new law. In the case of Commonwealth v. Palmer the Court held that the growing or cultivation of marijuana was still a crime even if the amount grown is less than an ounce and grown for personal use. The Court found that the new law does not contain an exception for cultivation.

Based on these three cases, it appears that in Massachusetts possession and use of less than an ounce of marijuana is an offense and not a crime. The social sharing of such small amounts of marijuana is also not a crime. However, possession of more than an ounce of marijuana, growing marijuana, and selling marijuana are still crimes in Massachusetts. The interpretation of the changes in the law have limited the ability of police to search and arrest when they find evidence of marijuana use.

The law that decriminalized marijuana has changed many legal proceedings in Massachusetts. However, possession is still illegal. In particular, the illegal use of marijuana can still be the basis for loss of custody in a divorce proceeding. An experienced Massachusetts lawyer can help advise on the changes of the new law and what has not changed in Massachusetts.

Now that we are divorced, stay away from my Facebook Friends!

Husbands and wives share many aspects of their lives. It is not unusual for them to share their Facebook friends and other social media contacts. The practice of looking at someone's friends or contacts and trying to convert them into your friends or contacts has earned its own nomenclature. The UrbanDictionary calls this practice “Facejacking” (limited to Facebook), “Spacejacking” (limited to MySpace), “fooching”, "mooching," "friend poaching," "friend reaping," or  "friend swiping".

Facejacking does not create problems when the couple is together. Frequently, one spouse encourages the other to do so. However, once the couple split up and get divorced, attitudes change. While the couple may 

remain Facebook friends, it is not acceptable for a former spouse to Facejack the new friends and contacts and reach out to them. The last thing that an ex-husband wants is for his ex-wife to contact his new girlfriend through Facebook. This is especially bad when the girlfriend doesn't expect such a contact. The way to prevent this problem is to anticipate this when drafting the divorce agreement.

A typical divorce agreement has a clause that requires each spouse to respect the privacy of the other. I recommend additional language be added that prohibits Facejacking and the like. An experienced divorce lawyer should be able to draft language that protects both spouses equally from the ex-spouse using Facebook to try to sabotage your new relationship.

What will the Court do in a divorce when I prove that my spouse cheated?

Discovering that your spouse has been unfaithful can be an emotional disaster. To many people, this is a wrong that can never be corrected. It can destroy a marriage. People expect that infidelity will be punished by a Judge in a divorce and the innocent spouse will be rewarded by a favorable property division or alimony as a result. Some people think that a person who commits adultry should not have custody of children. While the actions of the courts vary depending on the specific facts of a case, usually, a Massachusetts Court will do very little when adultery is proved.

Grounds for Divorce

Massachusetts is a no-fault divorce state. There is no advantage to filing a fault grounds divorce if the other party will appear in the divorce action. While Massachusetts allows a divorce on the grounds of adultery, Judges will encourage parties to change the divorce to no-fault. If a divorce is filed on the grounds of adultery, a motion must be filed to name the third party who participated in the infidelity. Judges will deny this motion as soon as it is filed.

Alimony and Property Division

Alimony and property division in a divorce require a Judge to consider many factors. There is no factor specifically addressing marital fidelity. One of the factors is "conduct of the parties during the marriage." Certainly cheating should be considered wrongful conduct. However, it is hard to imagine a marriage where the only conduct by one party was bad conduct. Usually every person has good conduct and bad conduct during a relationship. The Judge must consider all conduct, good and bad. As a result, it is rare that a person has behaved so badly during a marriage that it has a significant affect on the outcome. Massachusetts divides marital property under a concept of equitable division. I have never heard a Judge describe any part of equitable division as including the concept of punishing a party for bad behavior.

Sometimes when Infidelity occurs one spouse has established an on-going relationship with a third party. Sexual infidelty may be a part of this relationship. Another part of the relationship may be using marital resources to benefit the third party. Expensive gifts or trips can constitute a diversion of marital assets. If spending of substantial money to conduct the affair or benefit the paramout occurred, then a Judge may be expected to take the expenditure into account when dividing assets. It is not the sexual acts that impact the property division, it is the spending of money.

Child Custody and Child Support

The standard for deciding custody is “the best interests of the child.” If the affair was unknown by the child and had no effect on the child, then the Judge should not consider the affair when deciding child custody or visitation. Although it is predictable that the paramour may be exposed to the child in the future, unless there is evidence of inappropriate sexual conduct occurring in the presence of the child, the Judge should not let an affair control a custody decision.

Child support is decided by application of the child support guidelines. Once child custody is determined, child support will follow. An affair is not related to the child support guidelines.


An affair may violate societal and religious morals. However, in most cases, it has almost no effect on an divorce. Of course, each case is fact specific and if your spouse has committed adultery you should consult an experienced family law attorney to discuss what effect, if any, this can have on a divorce.

How to prepare for a divorce.

Some people make the decision to divorce in an instant. Others find the decision to divorce is a long process that percolates over time. If you are a person who is thinking about divorce and moving towards ending your marriage, then the following actions can help you prepare for divorce and to make the decision about your future:

1. Consult a family law attorney.
   A lawyer can discuss the specifics of your case with you and give you advice on preparing for a divorce. The lawyer can also help you understand divorce process, cost, and how a divorce will affect your family. The sooner you consult a lawyer, the better prepared you will be.
2. Gather financial information.
   Financial information is the center of a divorce. From the first time you go to court until the last, financial information is critical to your case. Financial statements must be filled out almost every time you go to court. These forms are signed under the pains and penalties of perjury and must be accurate. When you have documents that accurately explain your financial status, you will save attorney fees and have more accurate financial statements. As you approach a divorce, make copies of financial documents and put them in a safe place where your spouse won't find them. If you have assets that are not documented like paintings, coin collections, or other collections, you should make a list of these items and photograph them.
   
3. Start tracking your budget.
   A financial statement discloses your income, expenses, assets, and liabilities. Many people have difficulty calculating their expenses. If you start recording your expenditures it will help you complete a financial statement. If you don't get divorced, you may find that tracking your expenses will help you take command of your budget. If financial problems are damaging your marriage, recording your expenses may help you discuss your issues with your spouse.
   
4. Don’t hide assets.
   Courts expect people to be honest. If you get caught hiding assets, you can expect that the Judge will punish you. If you are caught hiding assets, a Judge may charge you with more assets than you actually took. Judges have great discretion in resolution of divorces and you don't want the Judge to think that you are trying to perpetrate a fraud on the court. You always want the Judge to think that you are honest and acting in good faith.
   
5. Don't speak ill of your spouse.
   If you haven't decided to end your marriage, trash-talking about your spouse is not going to help your relationship. If you have decided to end your marriage, nothing good will come from saying bad things about your spouse. If you have children you don't want your children to hear you speaking poorly about your spouse. The same is true for friends and relatives. Any statements you say about your spouse can be brought into court and influence the Judge. If you have a custody battle, these statements may be the basis for awarding custody to your spouse. Remember that bad statements are not limited to verbal statements. Make sure you behave on social media like Facebook. Any postings on the internet may be introduced in court. Don't post anything that you don't want a Judge to see.
   
6. Don't destroy evidence.
   If you destroy documents or other evidence, a Judge may treat this as if you are hiding assets. Just as a Court looks to good faith in disclosing financial information, the Court will also look to good faith in preserving evidence. Since social media (Facebook) may be introduced as evidence, you should not destroy postings on social media.
   
7. Get help from a therapist.
   The decision to divorce can be one of the most difficult and stressful decisions in a person's life. Consult a therapist to deal with the stress and possibly the decision about terminating your marriage.  Massachusetts health insurance policies have mental health benefits.  Consult your health insurance company to understand your coverage and to choose an appropriate therapist who is covered by insurance.