Facts
- Phillip Etkin was arrested and prosecuted for extortion in the Southern District of New York.
- During the investigation, law enforcement recovered a folder from Etkin’s police vehicle that contained a printed copy of an email exchange between Etkin and his wife.
- Etkin sent his part of the email exchange from his employer-provided work computer.
- Each time Etkin powered on and logged into the work computer, he encountered an on-screen notice stating that the user had “no legitimate expectation of privacy” in computer activity and that use would be monitored or recorded by the employer.
- The notice appeared at every log-on and required the user to click “OK” (or equivalent acceptance) to proceed.
- The monitoring policy was not separately communicated verbally, and there was no evidence that Etkin’s employer actually read his emails.
- Before trial, Etkin moved to exclude the email from evidence, arguing it was a confidential marital communication protected by the marital communications privilege.
- Etkin asserted that he never actually read the on-screen notice, even though he clicked through it many times to use the computer.
Issues
- Does the marital communications privilege protect an email communication between spouses when the sender used a workplace computer system that repeatedly warned there was no privacy and that use could be monitored or recorded?
Decision
- The court denied Etkin’s motion to exclude the email exchange.
- The court held the marital communications privilege did not apply because the email lacked the confidentiality required for the privilege.
Legal Principles
- The marital communications privilege protects confidential communications between spouses made during a valid marriage.
- Confidentiality for marital-communications privilege purposes turns on whether, in context, the communicating spouse had a reasonable basis to expect the communication would remain private from third parties.
- A communication sent through a channel that the sender knows, or should know, is subject to employer access or monitoring is not confidential in the way the privilege requires.
- A repeated, clear log-on banner stating there is no legitimate expectation of privacy and that monitoring may occur defeats a claim of confidentiality, even if the user later says he did not read the notice, where the user repeatedly clicked through it to gain access.
- The absence of proof that the employer actually monitored or read the email does not restore confidentiality when the sender was warned that monitoring could occur.
Conclusion
Because Etkin sent the email to his wife using an employer computer that displayed a clear, repeated notice that there was no expectation of privacy and that computer use could be monitored or recorded, the court found he had no reasonable expectation the communication would remain private from third parties; the email therefore was not a confidential marital communication and could be used by the government at trial.