In a recent decision that upheld the bribery and extortion convictions of a former member of the Virginia House of Delegates, the Fourth Circuit addressed the issue of whether an employee has a reasonable expectation of privacy in his use of workplace electronic mail for personal communications to a spouse, holding that emails sent to a spouse on a work computer were not covered by the marital communication privilege. United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012) (“Hamilton II”).

The issue first arose in connection with a motion before the Eastern District of Virginia trial court by the government to admit into evidence emails exchanged between the defendant, Phillip Hamilton, and his spouse, through the email system of Hamilton’s employer, the Newport News public school system. United States v. Hamilton, 778 F. Supp. 2d 651 (E.D. Va. 2011) (“Hamilton I”). In the emails at issue, the couple discussed their financial troubles, and Hamilton told his wife he would “shoot for” a salary of $6,000 a month from Old Dominion University in return for securing state funding for the University’s proposed educational center. Hamilton II, 701 F.3d at 406.

The government sought to admit the emails under F.R.E. 401, contending that they showed the defendant’s state of mind, intent and motive. Neither side contested the relevance of the emails to the prosecution, but Hamilton opposed their admissibility on the grounds that the use of the emails sent to his wife violated the spousal privilege. District Judge Henry Hudson admitted the emails, noting that Hamilton was aware that his employer “had access to the contents of his computer and took no steps to safeguard the electronic messages between him and his wife.” Hamilton I, 778 F. Supp. 2d at 655. Hamilton appealed.

The Fourth Circuit’s analysis turned on the issue of whether Hamilton had a reasonable expectation of privacy in his use of a work-provided email system on a workplace computer when communicating with his spouse. In an opinion authored by Circuit Judge Diana Motz issued on December 13, 2012, the court drew an analogy to the Supreme Court’s holding in Wolfle v. United States, 291 U.S. 7 (1934), that a defendant’s communication with his spouse did not fall within the privilege as a result of his voluntary disclosure to a third-party, a stenographer. Making an analogy linking old and new writing technologies, the Fourth Circuit reasoned that “email has become the modern stenographer.” Hamilton II, 701 F.3d at 408.

This stenographer/email analogy guided the court’s analysis on two levels. First, just as Wolfle noted that in the 1930s a party’s communications with a stenographer were presumed to be confidential, modern computer users believe that communications by email are confidential, and therefore have a reasonable expectation of privacy in using email. This tipped in favor of maintaining the privilege. The Hamilton II court drew an important distinction, however, noting that just as spouses in the pre-electronic communication era could “conveniently communicate” without the use of a stenographer, spouses today can “conveniently communicate” without using a workplace email account on a work computer. Id. In other words, the court reasoned that the fact that one generally has a privilege in communicating with one’s spouse, and one generally has a reasonable expectation of privacy in using email, does not mean that one has a reasonable expectation of privacy in emailing one’s spouse on a work email account from a workplace computer.

The court then focused on whether Hamilton’s employer put him on notice that his computer use was being monitored through a workplace computer usage policy. Both sides conceded that when Hamilton sent the emails in 2006 his employer did not have a computer usage policy that addressed employee privacy rights. The University added a policy in 2008, however, stating that all users should have “no expectation of privacy in their use of the Computer System,” and that “[a]ll information created, sent[,] received, accessed, or stored in the . . . Computer System is subject to inspection and monitoring at any time.” Id. (quotation marks omitted). The Fourth Circuit emphasized the inclusion of storage in the school’s usage policy to highlight the fact that the emails Hamilton sent in 2006 were still being stored by the school’s computer system when the government opened its investigation in 2009 and when the charges were filed in 2011. The court also took note of the fact that Hamilton had to affirmatively acknowledge this usage policy every time he logged onto his work computer.

Hamilton challenged this aspect of the court’s reasoning, maintaining that he never waived the privilege because he was not on notice at the time that he sent the emails and could not waive the spousal communication privilege retroactively. The Electronic Privacy Information Center (“EPIC”) joined him in this argument, stating in an amicus brief cited by the court that it seemed “extreme” to “require an employee to scan all archived e-mails and remove any that are personal and confidential every time the workplace use policy changes[.]” Id. (citing EPIC Br. at 18) (quotation marks omitted).

Judge Motz acknowledged the difficulty of this issue, stating “[i]n an era in which email plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by email usage.” Hamilton II, 701 F.3d at 408. However, the court ultimately rejected the privilege argument, because Hamilton did not take any steps to protect the emails even after he was put on notice that his employer’s computer usage policy permitted the inspection of stored emails. Id. The court drew a parallel with courts that have held that defendants do not have an “objectively reasonable” belief in the privacy of files on their office computers when put on notice by their employer that their use of electronic media would be monitored. United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (employer’s policy put employee “on notice” that “it would be overseeing his Internet use”); In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005) (listing employer’s maintenance of relevant usage policy, monitoring of employee email, third-party right of access to email, and employee’s awareness of the policy as key factors suggesting no expectation of privacy).

At the time of printing, Southern District of New York District Judge Paul A. Engelmayer issued an opinion in Medcalf v. Walsh, 2013 WL 1431603 (S.D.N.Y. Apr. 9, 2013), which briefly addressed the spousal privilege as applied to email in the context of a defamation litigation. The plaintiff’s claim was based in part on the contents of the defendant spouses’ email communications, which the plaintiff had accessed and discovered in her capacity as assistant to one of the defendants. In dismissing the complaint, Judge Engelmayer held that under New York defamation law, “all communications between [spouses], on any subject, [a]re absolutely privileged based on [the spouses’] status as a married couple” and therefore could not satisfy the publication element of the claim. Id. at *4 (internal quotation marks and citations omitted). The Court rejected the plaintiff’s argument that there was no reasonable expectation of privacy in emails sent “using a law firm’s email network” and without an “in confidence” designation. Id. at *5. Judge Englemayer explained: “[T]he [New York defamation] case law does not reflect an exception for spousal communications made via media which third parties may be capable of accessing.” Id.

Conclusion

Hamilton I and II serve as a reminder that in this modern discovery age, where ESI review and production is fast becoming the norm, employees whose employers have put them on notice of the lack of privacy in their workplace computer devices and systems (and perhaps even those who have not been so clearly advised) might be best protected by leaving personal spousal communications for a different medium.