Question: My wife and I separated eight months ago after 12 years of marriage. We have no children. Each of us is employed. I took my laptop computer with me, and she kept the desktop that she used for her business. During our marriage, for simplicity’s sake, we each have always used Web-based e-mail accounts. When I left, I didn’t change anything because my wife never knew my password, nor I hers.

Five months ago, my wife sued me for divorce based on adultery. I have just learned from my lawyer that my wife figured out my e-mail password, repetitively went into my account, and read e-mails between me and other persons. She then hired a private detective, gave him the e-mails and information from them, and, based on that information, the detective found me in compromising situations. My wife also gave information from my e-mails to her lawyer who is using documentation about my future business transactions to show I can pay her more money.

As soon as I found out this was going on, I changed my password and wrote the e-mail provider about my dilemma. They are conducting an investigation. I never gave my wife or anyone else the authority to go into my e-mail. My lawyer tells me that he is not an expert in this area and that I should hire someone to look into the situation. I thought all of this was illegal?

Answer: Given our fast-paced society, the contents of e-mail, text messaging, and instant messaging have become significant sources of information in all types of litigation. However, there are two ways to acquire this information: legally and illegally. Assuming the facts you have given us are true, it appears that your wife, her investigator, and her attorney have chosen the illegal way.

Based on federal law - and similar laws in some states that cover stored communications -- unauthorized access to opened and saved e-mails that are stored on the computers of electronic communications services, such as Yahoo!, Gmail, and Hotmail, in contrast to a company’s internal mail server, may well be violations of the Stored Communications Act. If so, in addition to being a crime, neither the communications themselves nor the content of the communications can be used as evidence. In addition, efforts to use these communications or information derived from them also constitute crimes and subject the perpetrators to civil monetary penalties and damages. (“Stored communications” are defined by federal law as temporary, intermediate, or other storage of a wire or electronic communication – including, of course, e-mail.)

By logging on to your personal webmail account and both accessing and retrieving your private e-mails from the webmail provider’s computers when she guessed your password, it appears that your wife violated at least federal stored communications law, and perhaps local law in your state of residence.

What to do: The Stored Communications Act includes a civil cause of action against anyone who intentionally accesses stored communications without authorization and uses them. The federal law also makes it illegal to use illegally obtained information. Since your lawyer admits his lack of knowledge in this area, we suggest that he associate with an attorney who is familiar with this area of the law because by your wife and her lawyer cutting corners and illegally obtaining this information, all of it could be inadmissible. Moreover, you may have causes of action against all who were complicit.