A recent case, Bailey v. Bailey, No. 07-11672 (E.D. Mich., Feb. 6, 2008), held that the unauthorized access of a person's already-read e-mail violates the Stored Communications Act, 18 U.S.C. 2701. The court followed Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2003), in what was a ruling of first impression on this issue in the Sixth Circuit. The defendant used surreptitiously installed keylogger software to capture his wife's e-mail account password and then used this knowledge to read her e-mail.
The plaintiff didn't challenge her husband's use of the keylogger under the federal wiretap law, but she did bring claims under a pair of Michigan eavesdropping statutes. She lost, revealing a big hole in Michigan's scheme for protecting electronic information. The first statute, MCL 750.539c, protects "conversations," and the court held here that a keylogger eavesdrops on keystrokes not "conversations." The second statute, MCL 750.539d, makes it unlawful to install a device that eavesdrops on "the sounds or events in that place." Here again, the court made a very literal reading of the law, holding that because a keylogger "only records electronically what keystrokes are pressed on a keyboard" -- not "sounds or events" -- the statute did not reach the defendant's conduct.
The court held, however, that the plaintiff had a common law cause of action for the privacy tort of intrusion upon seclusion. She will have to prove at trial that her husband's installation and use of the keylogger is "objectionable to a reasonable man." Let's hope the court meant man and woman.
Legislation to outlaw the unauthorized installation of keystroke loggers has been under consideration by the Michigan state legislature for several years now. The latest proposal, Senate Bill 145, would create a civil cause of action with $10,000 in statutory damages for the unauthorized installation of keyloggers.
Not all state eavedropping laws are as rooted in the physical world as the Michigan statutes involved in Bailey. In Rich v. Rich, No. 2007-01538 (Mass. Super., Nov. 26, 2007), the court held that a husband's act of installing a keylogger on a family computer (which he used to gain access to his wife's e-mail account password, just as in Bailey), violated a Masschusetts law that protected the "contents" of wire and oral communications. "Contents" is defined by the Massachusetts statute as "any information" concerning the existence, contents, of meaning of a communication.
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