Can Information Gained by Hacking be Used in a Divorce?

Full Question:

I am in the middle of a five year divorce. My husband hacked into my emails. I moved away to get away from him the main way I communicate with my attorney is through emails. My husband got over 400 attorney/client private communications from me. He then fired his attorney and hired a new one who then tried to use this information in open court against me. The emails contained very private strategy planning, deposition preparations and many other communications. He even hired an expert (computer forensics expert) to testify that the emails were real and untampered with. He was looking for emails that would show that I had a boyfriend (which I don't) and he didn't realize that he had gotten all of the attorney/client communications. But he used them against me when he did find out. Do I have a case against my soon to be ex husband and his attorney?
08/05/2009   |   Category: Internet ยป Hacking   |   State: New Mexico   |   #17960

Answer:

Hacking is the deliberate and unauthorized access, use, disclosure, and/or taking of electronic data on a computer and is covered under federal and varied state criminal statutes. The computer crime of hacking is committed when a person willfully, knowingly, and without authorization or without reasonable grounds to believe that he or she has such authorization, attempts or achieves access, communication, examination, or modification of data, computer programs, or supporting documentation residing or existing internal or external to a computer, computer system, or computer network. Hacking may also occur when a person willfully, knowingly, and without authorization or without reasonable grounds to believe that he or she has such authorization, destroys data, computer programs, or supporting documentation residing or existing internal or external to a computer, computer system, or computer network. Besides the destruction of such data, hacking may also be defined to include the disclosure, use or taking of the data. commits an offense against intellectual property.

There is a common-law tort of invasion of privacy, which may be pursued when a person obtains information in a way considered “highly offensive to a reasonable person.” This common-law tort may exist even if the action is not prohibited by the New Mexico Computer Crimes statutes.

RESTATEMENT (SECOND) OF TORTS, §652B (1977) provides:

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for the invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

If interstate commerce is involved, federal laws in the. the Computer Fraud and Abuse Act (CFAA), may apply.

The most common civil causes of action under the CFAA are brought under either:

1. 18 U.S.C. 1030(a)(2)(C), which requires a showing that a person
(1) "intentionally,"
(2) accessed a computer,
(3) "without authorization" or "exceeded authorized access,"
(4) and obtained information from any "protected computer,"3
(5) if the conduct involved an interstate or foreign communication;
2. 18 U.S.C. 1030(a)(4) which requires a showing that a person has
(1) "knowingly and with intent to defraud,"
(2) accessed a "protected computer,"
(3) "without authorization," and thus
(4) has furthered the intended fraudulent conduct and obtained "anything of value"; or
3. 18 U.S.C. 1030(a)(5) which requires a showing that a person
(1) "knowingly,"
(2) caused transmission of a program, information, code or command and,
(3) as a result, "intentionally"
(4) caused damage,
(5) "without authorization,"
(6) to a "protected computer," or
(7) "intentionally,"
(8) accessed a "protected computer,"
(9) "without authorization," and
(10) caused damage" and "loss" aggregating at least $5,000.00.
In Bunnell v. Motion Picture Association of America , the plaintiff's complaint alleged misappropriation of trade secrets, conversion, unfair competition, violations of the Computer Fraud and Abuse Act (CFAA), tortious interference with a business expectancy, and sought injunctive relief and damages.

Please see the following NM statutes to determine applicability:

30-45-3. Computer access with intent to defraud or embezzle.

A person who knowingly and willfully accesses or causes to
be accessed a computer, computer system, computer network or
any part thereof with the intent to obtain, by means of
embezzlement or false or fraudulent pretenses,
representations or promises, money, property or anything of
value, when the:

A. money, property or other thing has a value of two hundred
fifty dollars ($250) or less, is guilty of a petty
misdemeanor;

B. money, property or other thing has a value of more than
two hundred fifty dollars ($250) but not more than five
hundred dollars ($500), is guilty of a misdemeanor;

C. money, property or other thing has a value of more than
five hundred dollars ($500) but not more than two thousand
five hundred dollars ($2,500), is guilty of a fourth degree
felony;

D. money, property or other thing has a value of more than
two thousand five hundred dollars ($2,500) but not more than
twenty thousand dollars ($20,000), is guilty of a third
degree felony; or

E. money, property or other thing has a value of more than
twenty thousand dollars ($20,000), is guilty of a second
degree felony.

30-45-4. Computer abuse.

A person who knowingly, willfully and without authorization,
or having obtained authorization, uses the opportunity the
authorization provides for purposes to which the
authorization does not extend:

A. directly or indirectly alters, changes, damages,
disrupts or destroys any computer, computer network, computer
property, computer service or computer system, when the:

(1) damage to the computer property or computer service has
a value of two hundred fifty dollars ($250) or less, is
guilty of a petty misdemeanor;

(2) damage to the computer property or computer service has
a value of more than two hundred fifty dollars ($250) but not
more than five hundred dollars ($500), is guilty of a
misdemeanor;

(3) damage to the computer property or computer service has
a value of more than five hundred dollars ($500) but not
more than two thousand five hundred dollars ($2,500), is
guilty of a fourth degree felony;

(4) damage to the computer property or computer service has
a value of more than two thousand five hundred dollars
($2,500) but not more than twenty thousand dollars ($20,000),
is guilty of a third degree felony; or

(5) damage to the computer property or computer service has
a value of more than twenty thousand dollars ($20,000), is
guilty of a second degree felony; or

B. directly or indirectly introduces or causes to be
introduced data that the person knows to be false into a
computer, computer system, computer network, computer
software, computer program, database or any part thereof
with the intent of harming the property or financial
interests or rights of another person is guilty of a fourth
degree felony.

30-45-5. Unauthorized computer use.

A person who knowingly, willfully and without authorization,
or having obtained authorization, uses the opportunity the
authorization provides for purposes to which the
authorization does not extend, directly or indirectly
accesses, uses, takes, transfers, conceals, obtains, copies
or retains possession of any computer, computer network,
computer property, computer service, computer system or any
part thereof, when the:

A. damage to the computer property or computer service has
a value of two hundred fifty dollars ($250) or less, is
guilty of a petty misdemeanor;

B. damage to the computer property or computer service has
a value of more than two hundred fifty dollars ($250) but not
more than five hundred dollars ($500), is guilty of a
misdemeanor;

C. damage to the computer property or computer service has
a value of more than five hundred dollars ($500) but not more
than two thousand five hundred dollars ($2,500), is guilty of
a fourth degree felony;

D. damage to the computer property or computer service has
a value of more than two thousand five hundred dollars
($2,500) but not more than twenty thousand dollars ($20,000),
is guilty of a third degree felony; or

E. damage to the computer property or computer service has
a value of more than twenty thousand dollars ($20,000), is
guilty of a second degree felony.

30-45-6. Prosecution.

A. Prosecution pursuant to the Computer Crimes Act shall not prevent
any prosecutions pursuant to any other provisions of the law where such
conduct also constitutes a violation of that other provision.

B. A person found guilty of violating any provision of the Computer
Crimes Act shall, in addition to any other punishment, be ordered to make
restitution for any financial loss sustained by anyone injured as the
direct result of the commission of the crime. Restitution shall be
imposed in addition to incarceration, forfeiture or fine, and not in lieu
thereof, and may be made a condition of probation. The defendant's
present and future ability to make such restitution shall be considered.
In an extraordinary case, the court may determine that the interests of
those injured and justice would not be served by ordering restitution. In
such a case, the court shall make and enter specific written findings on
the record substantiating the extraordinary circumstance presented upon
which the court determined not to order restitution. In all other cases,
the court shall determine the amount and method of restitution.

30-1-13. Accessory.

A person may be charged with and convicted of the crime as an accessory
if he procures, counsels, aids or abets in its commission and although he
did not directly commit the crime and although the principal who directly
committed such crime has not been prosecuted or convicted, or has been
convicted of a different crime or degree of crime, or has been
acquitted, or is a child under the Children's Code.