Question: When and how is an expectation of privacy predictable, and does this extend to joint property between husband and wife?
The scenario: Husband & wife, still married, still living together, in a joint-property state; the couple purchased a computer after they were married. One partner in the marriage wants to know what is on the computer, all of it, deleted files, e-mail, documents, etc. Because of passwords, file deletions, and related barriers, a third party--a forensic computer examiner--is needed to extract the requested information and provide it to only one partner. I have been confronted with this scenario dozens of times since I started doing forensic computer work. Each case has its own merits, and I make a decision based on each individual set of circumstances.
Disclaimer: I am not an attorney; this is not legal advice, or even a legal opinion. This article reflects my decision on how I intend to conduct my business after being presented with an ethical, and legal dilemma of whether or not to take each case.
While this article focuses on computer privacy, it is apparent that the logic applies to several other areas wherein privacy issues become a concern. Keep in mind that we are not discussing privacy in the workplace; the principles may apply, but there are different regulations and expectations when discussing a person's expectation of privacy on the job.
Opinions regarding the privacy issue are like thumbs, everyone has at least one and most have a couple of them. The opinions run from, "It's all private," to "None of it is private." After doing quite a bit of research, I'm convinced the resolution is somewhere in the middle.
The California Privacy Act (PC 630-637.3) was designed to protect the right of privacy, and it prohibits eavesdropping or recording of confidential communications without the consent of all parties involved. No exemption for a spouse. Additionally, Section 1 of Article 1 of the California Constitution assigns inalienable rights, including the right to privacy. On the Federal level, the ECPA (Electronic Communications Privacy Act of 1986) prohibits unauthorized access to or retrieval of electronic communication while it is in electronic storage, especially when a person exhibits an expectation of privacy.
In determining whether we have a privacy expectation conflict, we need to look at several issues that either reinforce or negate that expectation. Circumstances that tend to tip the scales include:
I tend to consider all these issues when making a determination about privacy, but it all boils down to one primary consideration: whether or not a person has a right to see what is on the computer. If an argument can be made for privacy expectation, they do not have that right. If circumstances negate the privacy expectation, then they may have a right to the information. Simple, huh?
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