Normally, communications between spouses are considered confidential and cannot be used in court as evidence. Notwithstanding, the United States Court of Appeals for the Fourth Circuit recently ruled that emails sent by a husband from his work email account to his wife were not protected by marital privilege and were, in fact, admissible into evidence.

In U.S. v. Hamilton, the government obtained a conviction against a former Virginia Delegate for federal program bribery and extortion, relying in part on emails between Mr. Hamilton and his wife. While a delegate in the Virginia General Assembly, Mr. Hamilton reached out to officials at Old Dominion University in Norfolk, VA to discuss funding for a new Center for Teacher Quality and Educational Leadership (“Center”) at the University. To obtain additional income, Hamilton used his position as a delegate to pass legislation funding the new Center in exchange for the University hiring Hamilton as a Director of the Center at a salary of around $6,000 a month. After the funding was approved, Hamilton indeed was hired as the Director without the University interviewing any other candidates. The government used emails between Hamilton and his wife to demonstrate that they had financial difficulties and that Hamilton was hoping to remedy them through his illegal activities to obtain funding and then be hired by the University.

On appeal, Hamilton argued that the trial court erred in admitting into evidence the emails between himself and his wife because they were protected by the marital communication privilege. The Fourth Circuit disagreed: “[T]o be covered by the [marital communication] privilege, a communication between spouses must be confidential; ‘voluntary disclosure’ of a communication waives the privilege.” The Fourth Circuit found that Hamilton waived the privilege because the emails were sent from and received in his Newport News school system work email account. Importantly, the Court relied on a computer usage policy adopted by the school system after the events in question, but prior to the government’s investigation in 2009, which provided that users would have no expectation of privacy even as to “stored” (i.e., old, archived) emails. Hamilton expressly agreed to this policy and, thereafter, took no additional steps to secure the privacy of the emails with his wife (e.g., by forwarding the e-mails to a personal account and deleting them from the work account). As a result, Hamilton waived the marital communication privilege.

By having employees agree that all communications in their work e-mail accounts are not private and are the property of the company, the company reinforces the fact that company computers and networks are to be used for business purposes only, and that employees should keep the electronic pillow talk on their own, personal e-mail accounts