The Fourth Circuit recently held that email communications between spouses sent through an employer’s email system could not be considered “confidential” and, therefore, were not protected by the marital privilege. In United States v. Hamilton, No. 11-4847 (4th Cir. Dec. 13, 2012), a jury convicted the defendant of bribery and extortion. The defendant had used his position as a member of the Virginia House of Delegates to help a public university obtain funding for a program in exchange for a job with that university. In emails he sent from his work account, he discussed with his wife their financial difficulties, their hope that the university would employ him, and how much income he hoped to earn from the university.
The Fourth Circuit rejected the defendant’s argument that those emails were protected by the marital privilege on the ground that he had no reasonable expectation that they would remain confidential. The defendant’s employer had implemented a computer policy in 2008 that required its employees to acknowledge (by pressing a key to log onto their computers) that they would have no expectation of privacy in using its computer system. Although the messages at issue were sent in 2006, the Fourth Circuit found that the defendant did not take any steps to protect the emails in question once the employer’s policy was implemented and, thus, waived the marital privilege.